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:
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.
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 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. Sotomayor is a passionate presence on the bench even on the palmiest of days; Tuesday she was on fire, palpably outraged at her colleagues and their deference, not to the “the presidency” but to Donald J. Trump. And in her written dissent, she made clear that she and Ginsburg were unwilling to adopt a judicial indifference to what any newspaper reader knows—that Trump reached office on a promise to punish Muslim immigrants, that he has repeatedly tried to keep that pledge, and that he regards, and has consistently claimed, the current order as yet another attempt to do so. The majority, she wrote, had piously declared less than three weeks ago that a few comments by one state official impermissibly tainted a decision to enforce an anti-discrimination law against a religious baker who refused service to a same-sex couple.
But in this case, she said, “the government actors ... will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance.”
Sotomayor noted Trump’s explicit reliance on the World War II Japanese internment cases as precedent for his proposed “Muslim ban.” She claimed numerous parallels between those cases and the “travel ban” case:
As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion. As here, the exclusion order was rooted in dangerous stereotypes about, inter alia,a particular group’s supposed inability to assimilate and desire to harm the United States. As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.
Clearly stung, Roberts took a moment at the end of the majority opinion to put a long-delayed stake in Korematsu’s heart: “The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: 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.’”
Well, good on you, John Roberts. But it is one thing to speak brave words against a long-past wrong; harder, however, to muster that outrage against the current climate of fear and xenophobia being incited from high places in the government, and the concomitant threats to the independence of the courts if the case had gone the other way.
The statutory and establishment issues before the court’s majority were hard ones; but, however the majority decided them, Roberts in his opinion might have offered a word of comfort to those afflicted by current persecution, or a hint of caution to the reckless chief executive whose erratic war on immigration has taken on new forms since the promulgation of the “travel ban.” The only note of caution was sounded by Kennedy, and that was a faint one. That Roberts failed to qualify his deferential language can only be accounted—and will, I am confident, be so accounted in the White House—a failure of nerve, courage, and judicial independence.
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