By a 5-4 decision along the usual ideological lines, the Supreme Court upheld the third iteration of the Muslim travel ban. On one hand, the court directly rejected the administration’s claim that it was nonreviewable by the court. However, in an opinion by Chief Justice John G. Roberts Jr., the court accorded extreme deference to the president and held, despite replete evidence of religious animus, that the executive order should be upheld.
Neal Katyal, one of the principal litigators challenging the ban, chose to look on the bright side. “In this case, it was not the decision but the process that defined America and that gives me hope,” he said in a written statement. “Though I am disappointed by the outcome, I am heartened that our system of government worked as the founders intended. Over the past year, a suit brought by ordinary Americans has made its way through the federal courts, and at every step the judiciary forced the White House to amend their travel bans to bring them more in line with our Constitution.” He added, “While we continue to believe that this third version fails that test, there is no question that by striking down the first two travel bans, the judiciary forced a recalcitrant administration to at least give its order the veil of constitutionality.”
The American Civil Liberties Union was irate, arguing in a written statement that the court “repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his actions.” It added, “It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking action to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”
On the substance of the decision, the majority opinion is less than coherent as to why the president’s repeated, racist comments should not be held to be evidence of racial animus, invalidating the ban. Roberts argued:
“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead 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, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
Wait a second. That is a bait and switch; the power of the president can be broad, but if the order is intentionally discriminatory, the issue is not his authority but his intent. And there the court simply dodges the issue. Former White House ethics counsel Norman Eisen observed, “The court has twisted itself into a pretzel to avoid having to address Trump’s openly and flagrantly unconstitutional purposes. Behind the doctrinal gyrations, hypocrisy is evident in the court turning a blind eye to Trump’s bias — still lingering here on his third attempt to obscure it and iterate a Muslim ban — while applying a deeply penetrating gaze to the government actor in the Masterpiece Cakeshop case.”
Roberts wrote, “Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements — many of which were made before the President took the oath of office.” However, because of the broad power of the president in this arena, the court says it need only find a rational basis for the executive order. In other words, the First Amendment doesn’t really matter in this context. Accordingly, the court refuses to take now-President Trump’s explicit expression of intent to discriminate seriously.
Justice Anthony M. Kennedy, who ruled for the baker who denied a gay couple a wedding cake, had based that decision on the overt expressions of religious bias from the commission hearing the complaint. In a defensively written concurrence, Kennedy offered:
“The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Well, the world would know this if the court struck down the executive order.
Nevertheless, the decision stands for now. Two political observations are in order.
First, this is a direct consequence of denying Supreme Court nominee Judge Merrick Garland a confirmation vote, followed by the election of Trump. Elections have consequences, in this case dastardly ones. Eisen observes, “This is, like the gerrymandering case, yet another decision that has an asterisk of shame next to it, because it would surely have come out the other way had Mitch McConnell and the Republican majority in the Senate not undemocratically blocked the appointment of Merrick Garland. That stain upon the legitimacy of the court and its decisions shall long linger and is evident today yet again.”
Second, the case can be cured by Congress and/or future presidents. Sen. Christopher A. Coons, D-Del., said in a written statement: “The Supreme Court may have ruled that the President’s travel ban was technically constitutional, but that doesn’t mean that it’s right, that it’s justified, or that it reflects America’s values. In the coming weeks, I plan to introduce legislation to make clear that in the United States, we will not tolerate discrimination based on religion or nationality, and I invite everyone who treasures our American values to join me in defending them.” He added, “The President’s travel ban is not only discriminatory and counterproductive; it stands in direct contrast to the principles embedded in our Constitution and our founders’ vision of a nation where all people are free to worship as they choose. With time, we have made our union more perfect by fighting discrimination in all of its forms, but the Court’s decision today demonstrates that we have a long way to go before we live up to our highest ideals.”
The courts can do a great deal to restrain an out-of-control chief executive, but especially with a Supreme Court majority of passive conservative justices, they cannot do everything. Constitutional scholar Larry Tribe observed, “This was hardly the Supreme Court’s finest hour. Some major court rulings are predictable but disappointing. This is among those — and it’s destined for infamy if and when the court again assumes its essential function of constraining oppression, bigotry and blindness.”
Ultimately, in their votes for president and Congress, the people have to decide what kind of country they want to live in.
Jennifer Rubin | The Washington Post
Jennifer Rubin writes the Right Turn blog for The Washington Post, offering reported opinion from a center-right perspective.
