Pretext, Reality, and Verisimilitude: Truth-Seeking in the Supreme Court

Abstract

The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality. In analyzing the Court’s fealty to objective reality in its review of Executive actions, this Article focuses primarily on two Supreme Court decisions: the Travel Ban Case and the Census Case. These decisions illustrate how the mode of judicial review can influence verisimilitude. In the Travel Ban Case, the Court refused to look behind an implausible explanation of the government’s actions, a paradigm judicial departure from verisimilitude inimical to the legitimacy of the Court. The Census Case is a less direct assault on objective reality, as the Court ultimately did examine the truthfulness of the government’s justifications. But it did so in a manner that does not manifest a vital commitment to truth. This Article will also touch upon a third case: U.S. Department of Homeland Security v. Regents of the Univ. of Cal. (the DACA Case). The DACA Case did not challenge objective reality but on the contrary insisted that agencies provide the actual reasoning behind their decisions rather than justifications they thought of later, even if those justifications were otherwise valid. The case thus reinforces the importance of candor and accuracy. A key lesson from these cases is that to preserve its legitimacy, the Court should abandon or modify doctrines that cede judicial review of national security issues, limit consideration of `pretext, decline to assess the intent of government actors, and indulge a presumption of regularity for administrative determinations. These reforms are achievable without a major overhaul of administrative law standards.