The Supreme Court squanders a chance to check a reckless president.
On Tuesday, as Chief Justice John Roberts read an oral summary of his opinion in Trump v. Hawaii, President Trump’s Solicitor General, Noel Francisco, sat a few feet away at counsel table.
Observers could not see Francisco’s lips move, but Roberts’s majority opinion—upholding the administration’s “travel ban” against entrants from a number of countries, most of them majority Muslim—adopted almost verbatim the arguments Francisco had made to the Court during oral argument in April.
Roberts was joined by the Court’s other four conservatives: Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. At the time of argument, an observer, no matter the view of the case, could easily have felt compassion for conservative judges seeking to apply traditional legal concepts amid the current poisonous political atmosphere. But on Tuesday, that same observer might very well conclude that the chief justice and the majority had resolved that genuine dilemma poorly.
This is not only a bad result; it is a bad opinion, and a bad omen for those who look to an independent judiciary as a stabilizing force amid the current chaos.
At oral argument, Francisco had begun by telling the Court, “After a worldwide multi-agency review, the president’s acting homeland security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.”
It is a beguiling narrative, though not a soul in the courtroom or the wide world beyond it believed it. In reality, where lawyer’s fictions garner little respect, there was no secret that the idea of “entry restrictions” came from the president and that they were understood both by him and by his supporters to embody his best attempt at a promised “total and complete shutdown of Muslims entering the United States.”
On Tuesday, however, the Court’s majority accepted the official version almost in toto. Though Roberts’s opinion reviewed the earlier, botched executive orders that tried to close the country’s doors to entrants from a number of Muslim countries, it recited their promulgation, lower-court rejection, and withdrawal in solely bureaucratic terms. Only 25 pages later did it mention “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation.” Before any serious reckoning with the outright bigotry of Trump’s campaign and his statements as president, the majority conducted a dense discussion of the president’s authority under the Immigration and Nationality Act.
That statutory argument was always a heavy lift for the challengers, because, as Roberts phrased it Tuesday, the statutory scheme “exudes deference to the President in every clause.” Chiefly at issue is a provision of the act, § 1182(f), that permits the president to “suspend entry of all aliens or any class of aliens” or impose restrictions on those he chooses. The challengers had argued that this language had to be read against the entire act, which reposes principal responsibility for creating “classes” of foreign entrants with Congress, with delegation to the president limited to emergency responses to foreign events.
But that restriction is not in the text, and Roberts was at pains to read the statute in the most pro-executive way possible—and, indeed, to go beyond the text to imagine a context of all but total deference to the executive, citing both “the broad statutory text and the deference traditionally accorded the President in this sphere.” The challengers had argued that previous presidential orders had been more closely tailored than the current version of Trump’s ban, suggesting that the statute was limited in scope; a few pages later, Roberts rejected that argument, citing the president’s “sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.”
By this point, a reader had gotten the idea.
Roberts only took notice of Trump’s statements in the second part of the opinion. The plaintiffs claimed that, by expressing and embodying hatred and disapproval of Islam, the order violated the prohibition on “an establishment of religion.” Roberts rejected this claim as well.
He began this section by noting many pious presidential proclamations in favor of religious freedom. Of course, those statements were made by other presidents, beginning with George Washington and moving forward to George W. Bush in the aftermath of 9/11. As for Trump’s own words, Roberts wrote, “the issue before us is not whether to denounce the statements.” Instead, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
After that, the statements more or less disappeared from the opinion, to be replaced by a general discussion of judicial review of immigration matters. Under a 1972 case called Kleindienst v. Mandel, the Court evaluated exclusion of a particular alien solely to determine whether the executive branch had given a “facially legitimate and bona fide reason.” Roberts read that as requiring the court to “look behind the face” of the order to determine whether it “is plausibly related to the Government’s stated objective to protect the country and improve vetting procedures.” After that cursory look, the majority concluded that “there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” Note the last phrase: The opinion does not say there was no religious hostility; it said, instead, that the Court may and should ignore it.
Kennedy, in a two-page concurrence, obliquely engaged with that choice: When the case is sent back to the lower court, he wrote, that court might still examine the record for “religious animus,” but should do so with the utmost caution, in proceedings that “would not themselves intrude on the foreign affairs power of the Executive.” But he added a kind of plea for mercy that seemed to be directed toward Trump himself:
Thomas wrote a separate concurrence directed to arguing that district courts lack the authority to issue nationwide injunctions against policies like the “travel ban”—an issue that remains alive in current cases challenging the Affordable Care Act and the “deferred action” program for aliens brought to the U. S. as minors. The opinion will surely be closely read by the advocates and judges below, and may prove more influential than many of Thomas’s separate opinions.
The Court’s four moderate liberals produced two dissents. Justices Stephen Breyer and Elena Kagan politely suggested that an issue remains to be resolved: Is this order a flat ban on all entry from the affected countries? The government at oral argument insisted that there is a “waiver” program by which potential entrants can demonstrate that their specific circumstances—family ties, illness, the need to study, or business matters, for example—should entitle them to entry despite the formal ban on entrants from their sending country. Objectors, and news reports, have since suggested that the State Department has never actually produced any guidance for consular officers who are asked to provide waivers. On this question, Breyer wrote, “the Court’s decision leaves the District Court free to explore these issues on remand.”
The show-stopper, however, was Justice Sonia Sotomayor’s dissent, joined by Justice Ruth Bader Ginsburg.
