The SCOTUS Ruling In Trump v. Hawaii [UPDATED]

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.

30 Comments

Filed under Around the World, Government & Politics, Law & Law Enforcement, Professions, Religion and Philosophy

30 responses to “The SCOTUS Ruling In Trump v. Hawaii [UPDATED]

  1. adimagejim

    Justice Sotomayor should be on anyone’s pay-no-mind list post her racist comments regarding wise Latinas.

    I don’t care what the background of a SCOTUS Justice is. I do care if they can read and understand the Constitution, the Federalist Papers and proper precedent regardless of the skin color or ethnicity of the authors.

  2. “We express no view on the soundness of the policy”

    Is this a common clarification in court opinions?

    • Certainly with this court. I take it to be a proper reminder that the Court’s job is to determine if policy is legal, not if it is wise, something ideological and partisan justices have trouble accepting. Often a conservative opinion will say, “We call upon Congress to address this problem, if they see it as such. We are just following the law as it is.”

      • It’s a fair clarification. I was just curious how often the Court used it and if, in yesteryear when people were more Constitutionally literate, the Court didn’t actually include that necessary blurb about it’s role.

        • JutGory

          I have seen this twice recently in state cases, one in construing a criminal statute that the Court thought was poorly drafted, the other in a civil liability statute. In the latter case, the legislature responded by adopting legislation that accomplished exactly what the Court said was deficient about with the law, as it stood. In both cases, the Court acknowledged that: 1) it is the job of the Legislature to set policy; and 2) the job of the Court is to apply what the Legislature said, not what it might have intended to say.
          -Jut

  3. The DNC has taken to twitter to remind us that it won’t stop fighting against the “Muslim Ban” as they put it.

    • It’s just an anti-Trump argument. Legally, it was always doomed once the case got out of the clutches of ideologues.

      • Glenn Logan

        It truly was, and it wasn’t a close call. I’d actually like to believe that the left-leaning jurists simply dissented to polish their bona fides rather than out of any legal reasoning or defining principle. Certainly, they articulated neither.

        I can live with a partisan jurist a lot more comfortably than an idiot who was regrettably placed there. Alas, Sotomayor has gone far to convince me in this case that she’s the latter. Alas.

        • Glenn Logan

          Well, that was one “alas” too many, alas.

        • ”left-leaning jurists simply dissented to polish their bona fides rather than out of any legal reasoning or defining principle”

          Well that’s outright nefarious conduct.

          The purpose behind a lifetime appointment is to longer be incentivized to pander to supporters, but to rule on behalf of the Constitution.

          • adimagejim

            This presumes the appointed jurist cares more for the Constitution than Alinskyite communism or its fellow travelers.

          • Glenn Logan

            Yeah? Well, how’s about this: LIFETIME. APPOINTMENT. That means a little unethical conduct is about as consequential as a fart in a whirlwind. Just ask Notorious RBG.

            Considering the crap the judges down below threw their way, I consider it downright restrained.

            • Glenn Logan

              Obligatory self-reply: I’m not excusing it, not defending it, just opining on what might be at the root of an objectively unqualified legal fail in the form of the dissent.

            • See, this is one of the best lessons in the ethical balancing the Founders wrestled with.

              1) Directly elected judges. Whose very partisanship and willingness to interpret law based on political winds would be essential to gaining a seat in the courts. Facing periodic reelection attempts, each judge would be incentivized to occasionally throw a ruling to the desires of their constituency, justice and right ruling be damned (at the cost of a defendant).

              2) Life time appointment of judges. Who, in theory, would have the kind of unhinged tenure after appointment to rule at their own whim, the Constitution be damned.

              To me, those both abuses are equally damaging, the least likely abuse comes from option 2, where at least the checks and balances are set apart from the whims of the people by a few layers. Though, it’s clearly apparent abusers still manage to make it through.

              My gut tells me it would be much much much worse if option 1 were the practice.

              • So we need another court who judges the judges? Just along the lines of how they stick to the Constitution and Law as plainly written?

                With the ability to remove an egregious judge?

                The ‘Extreme Supreme Review’ court?

          • I think so too, but it’s basically what Alito did in his McCoy dissent.

  4. DaveL

    In the Masterpiece Cakeshop decision, it’s worthy of note that the Court also remarked on several inconsistencies in the Commission’s reasoning and approach to ruling on a few different cases. For instance, the Commission in Masterpiece’s case decided that a reasonable observer would interpret the message of the cake as belonging to the customer, not the baker. Yet it declined to apply that same rationale in a separate case where the customer demanded an anti-gay-marriage message. This is precisely the sort of analysis that is missing from the 9th Circuit’s holding.

    A more apt analogy would have been if some members of the Colorado Civil Rights Commission had made derogatory comments about conservative Christianity at a party, and the courts decided on that basis that any subsequent decision made by the commission was unconstitutional if it harmed the interests of a conservative Christian, regardless of the putative reasoning given by the Commission.

    • Or, by contrast, if an immigration judge, deciding a deportation hearing against a Muslim, made derogatory comnents about Islam.

      Masterpiece Cakeshop would require a new hearing, perhaps before a different judge.

      • Glenn Logan

        You left out the word “ever” in front of “…made derogatory comments…”

        Because of what the majority is saying, there is no clear guidance that animus does not extend back to the first spoken or written incident displaying it. Given the opinions of the minority, I would assume that animus would extend in an unbroken line from the first incident until… death?

  5. crella

    ““total and complete shutdown of Muslims entering the United States”

    “until we can figure out what’s going on” with an added comment that I cannot quote verbatim about increased vetting procedures said on the campaign trail in response to the San Bernardino shootings the day before, in which the wife of the couple immigrated from somewhere she shouldn’t have been able to, by lying on her visa application, which was not caught. Her Facebook page was full of ISIS material, which they didn’t catch, and the neighbors had been suspicious because of the both the great number of packages delivered and the number of people in and out of the house all the time.

    I watched the original speech live on CNN, and was flabbergasted when a few hour later, when I watched the news again, seeing the video on all news sites cut just before ‘until we figure out what’s going on. ( ‘we need a better vetting process’). I watched that get twisted real time. It became the typical way to cover Trump, exactly the same tactic was employed (under much less serious circumstances) when Trump fed the fish with Abe. The 10 seconds or so of Abe dumping his fish food and urging Trump to do the same was cut. While the fish incident was inconsequential as far as policy was concerned, it showed that the news media is A-Ok editing footage to broadcast the news, claiming the opposite of what actually took place. No hesitation, and no shame whatsoever about blatant manipulation of fact.

    • Glenn Logan

      I wish I could explain this with a drawing, but imagine this:

      A Venn diagram showing Muslims and Radical Islamic Terrorists. The Muslims are the big circle, and it completely contains a smaller circle that represents the Radical Islamic Terrorists.

      What Trump’s policy is trying to determine is the relative size of each circle for each country, or even city. For some, they may be substantially the same size. Those are the ones we want to reject.

  6. Greg

    The greatest evil of the dissents is their claim that Trump’s order is unconstitutional. Even the more sober dissent of Breyer says that the order would violate the First Amendment if its “promulgation or content was significantly affected by religious animus against Muslims.” This case should properly have been only about whether Trump’s order violated the statute governing immigration. By dragging the First Amendment into it, the dissenters are laying the groundwork for a holding that it is unconstitutional even for Congress to restrict immigration if its restrictions are “significantly affected” (a rather low standard) by religious feeling. Doesn’t this come very near to saying that certain foreigners have a constitutional right to come to the United States no matter how strongly unwanted they may be, or more accurately that they have a constitutional right to come here precisely *because* they are so strongly unwanted, and that there is nothing the American people can do to stop them short of amending the Constitution?

    • That way lies madness, as it is open border de facto polity.

      I remain amazed how America is being asked to have a policy that NO OTHER country on Earth has, and that has been shown to destroy countries in the past.

      • Since we know that open borders historically undermines countries, I wonder if it is a logical conclusion that the open borders crowd wants this…?

        Has anyone told them the hazards of their vision or do they know?

        • I left the inference to the reader, and you astutely picked up on it!

          My answers to your questions depend on who you are talking to. The SJW on the street does not care about the hazards of their vision. The political/intellectual/intelligentsia class (glad that old term was reintroduced here!) knows and are doing this exactly to destroy the nation as it exists.

  7. Steve-O-in-NJ

    https://www.oregonlive.com/portland/index.ssf/2018/06/despite_warnings_from_feds_por.html

    Meantime…how’s that for Portland acting like dunces? Oh no, we won’t interfere with this occupation…

    • Willem Reese

      Should you have any doubts about what level of SJW lunatics are at work in that protest, note the “Ask About Pronouns” sign evident in the pic (second down, video) of one of their tent interiors.

  8. 5. I was REALLY surprised by Breyer and Kagan, I called this 7-2 last week.

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