The Supreme Court properly and ethically killed the burgeoning liberal judicial theory that different Presidents have different restrictions on how they can exercise established Presidential powers. The majority in in the just announced decision in Trump v. Hawaii conclusively struck down a Hawaii judge’s ruling that Trump’s hostile comments about Muslims on the campaign trail rendered his travel restrictions unconstitutional, while a similar measure ordered by a nice President for the right intuited reasons would be presumably acceptable. This seemingly partisan ruling required substituting mind-reading for the President’s stated reasons for the Executive Order, and would have established a terrible precedent in a number of areas.
Sadly, this was another 5-4 ruling where the Court seemed to divide along ideological lines. However, since it seems clear that the five conservatives would have ruled the same way no matter which party’s President had issued the order, while the liberal bloc was indulging “the resistance” with a “Trump is special” approach, only one side of the political divide appears to have left integrity and and objectivity in their spare robes. Many, many commentators around the web have noted that this should have been a 9-0 decision, and that the political bias of the Hawaii decision was flagrant from the start. I agree. The President’s authority in this area is clear and unambiguous.
Writing for the majority, Chief Justice John Roberts wrote that the government “has set forth a sufficient national security justification” for its action. “We express no view on the soundness of the policy,” Roberts added.
More, from the holding:
Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements made by the President and and his advisors both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself…
“The admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly bur dens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel , 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying a rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.
I’m sure the “resistance” will endorse, as Justice Ginsberg did (and only her: kudos to Justices Breyer and Kagan), the typically touchy-feely sentiments of Justice Sotomayor, who began her dissent thusly:
“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus…”
Sotomayor is a poor jurist and an embarrassingly partisan one, and her dissent begins with hackery. She does not footnote what she says was how the policy was “advertised openly and unequivocally,” and for good reason: it wasn’t! I checked: that statement was made by candidate Trump in December of 2015. Since the actual policy did not apply to every Muslim nation, much less every Muslim, his campaign rhetoric did not “advertise” the order and policy under review at all.
This is unethical dissent-writing, and she should be admonished for it. Shame on Ginsberg for choosing partisan sentiment over principled and honest jurisprudence.
Justice Breyer’s dissent, in contrast is professional and built on legal reasoning, based on what I have read so far.
I have only skimmed the opinions, concurrences and dissents, so I’m not going to say any more right now. You can read the various opinions here, and I urge you to do so. I guarantee that, as usual, most of the journalists and pundits weighing in on the opinion will not have read them.
UPDATE: Sotomayor’s embarrassing dissent has two more dives into intellectually dishonest (or intellectually handicapped) hackery.
First, she compares the decision to Korematsu v. United States (1944), when the Court rubber stamped the internment of Japanese-American citizens, one of its worst decisions ever. Justice Roberts correctly (and in measured words) slapped this down as nonsense:
The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission…. Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).
It really is troubling that Ginsberg was willing to sign on to Sotomayor’s atrocious reasoning.
Digging deep, Sotamayor also tries to compare the case with the recent decision in Masterpiece Cakeshop, where the Court ruled that the plaintiff had been the victim of a biased process:
“Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom…. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action… the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political community.’ ”
A lousy analogy from an inferior jurist. A single party was involved in the Case Of The Reluctant Baker, and in the meeting of the body deliberating on the case, negative opinions about Christianity and religion were expressed. In the case of the executive order, the only evidence of the alleged bias were statements made before it was drafted, and the order wasn’t consistent with the alleged anti-Muslim bias expressed anyway.
What else? Oh, yes: Sotomayor conveniently neglects to mention that baker Jack Phillips is an American citizen, and has rights that non-citizens do not. Clarence Thomas tries to explain this flaw to his colleague in his concurring opinion:
The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad…. And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.