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The Court and the Muslim Ban

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As many of you will have heard, the Supreme Court issued an order today granting cert in the Trump travel ban case, while allowing it to go into effect for foreign nationals without a pre-existing relationship with the United States. This news is…not good, Bob:

The three most conservative members of the Court—Trump nominee Neil Gorsuch and Justices Clarence Thomas and Sam Alito—are nearly certain to rule the ban constitutional. All three justices dissented from the part of the Court’s order preventing the ban from being enforced against foreign nationals with a pre-existing relationship with the United States, and would have allowed the entire ban to go into effect this week. It would be shocking if any of these three justices held Trump’s ban to be unconstitutional.

With the four Democratic nominees likely to follow the lower courts in declaring the bans unconstitutional, the question is whether Roberts or Kennedy might be a fifth vote. We cannot be certain either way. But both the split of the 9th Circuit on partisan lines and the Court’s decision to hear the case are not very good signs. The smart money would be on a 5-4 decision upholding Trump’s travel ban as a legitimate exercise of presidential authority, despite the strong evidence of discriminatory intent.

Last week, the Supreme Court held that executive branch officials were immune from civil suits resulting from constitutional violations after 9/11. In his dissent, Justice Breyer detailed the ugly history, from the Alien and Sedition Acts to the internment of people of Japanese origin in World War II, of excessive deference to the executive branch during wartime. Specious national security justifications have time and again been used to justify the suppression of political dissenters and racial minorities while the Supreme Court has looked the other way. It is too early to know for sure, but Trump’s travel ban may well become the next cautionary tale.

Some liberals like the chances that Kennedy and/or Roberts will stand up to Trump here. I’m the other kind.

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  • Mutombo

    So, Trump gets his half-ban for the summer to work on his overhaul of immigration policy, and then SCOTUS will give him another ban later for second overhaul of immigration policy?

  • Solar System Wolf

    SCOTUS has spent the last few decades saying there can’t be any discrimination without provable discriminatory intent. Now that there’s intent, I guess that’s not going to work for them anymore as a seemingly value-neutral excuse.

    • Steve LaBonne

      “The Constitution forbids discrimination, even if imaginary, against cisgender heterosexual white Christian men. It mandates discrimination against everybody else, because that was the intent of the Founding Fathers.”

      • As originalist arguments go, that one is sadly plausible.

  • aab84

    We’ll have to wait until oral argument, but I don’t think we’re ever getting a merits ruling. In granting cert, the Court added an issue to those raised by the petitioners: whether the case is moot because the 120 day period of the order will have expired before the case is decided.

    They’re giving themselves an out, and I’d be genuinely surprised if they don’t take it. It’s a classic Roberts move. He wants to give Trump a win on the ban, but he probably doesn’t want to have to write or sign onto the next Korematsu, and he likely also doesn’t want to break a ton of new ground on religious discrimination in this kind of case.

    Today’s order, (which basically puts the Muslim ban in place until at least October for the vast majority of people) combined with a mootness ruling, is a classic Roberts way to split the baby. It’s possible that the Trump Administration forces his hand by concluding after 120 days that the ban needs to be permanent, but absent that, I’d expect a dodge. That would also help explain why there was a conservative dissent today but no liberal one.

    • LosGatosCA

      Roberts is definitely a ‘boil the frog approach’ kind of guy. No reason to use a sledge hammer and rile up the rubes which might derail things down the road. Better death by a slow simmer becoming a full boil later that gives him the ‘appearance’ of being unbiased.

      In Roberts world, just calling everything a strike doesn’t work when the pitcher is obviously intending to and actively throwing to bean the batter. In the dirt, wide outside, those are strikes. But the orders/pitches behind the batter’s head are just too obvious.

      Plus typos and poorly written crap written by non-lawyers – I can see Roberts issuing a warning to the Trump admin to get some pros(e) on the case(s) or he’ll be forced to embarrass them until they do.

      ETA – he’ll pretend it never happened – moot

    • Just_Dropping_By

      The point about the Court adding a new issue is a very good one and not something I’ve seen mentioned anywhere else so far.

    • Pete

      This analysis makes a lot of sense to me.

  • Dilan Esper

    It’s one of three things.

    Either:

    1. Roberts and Kennedy don’t believe this is unconstitutional, do believe that the injunctions went too far (really, unrelated to this case, the legal community definitely needs to have a conversation about national, untailored injunctions), and this is going to go 6-3 against Trump (or at least as applied to aliens with some connection to the US).

    2. Roberts and Kennedy made a deal to side with the liberals if they agreed to narrow the injunction, and will vote to uphold the order on the merits, 5-4.

    or

    3. It’s going to be mooted.

    • DamnYankees

      It’s gotta be #3.

  • Denverite

    One of the 9th Circuit dissenters, Judge Alex Zoninski, is a former Kennedy clerk who has maintained a warm relationship with his fellow Californian.

    Scott, you’re just giving Dilan ammunition there…

    • Dilan Esper

      LOL.

    • Scott Lemieux

      Should be corrected shortly!

      • Joe_JP

        A constitutional scholar wouldn’t have needed to do that.

  • CP

    In his dissent, Justice Breyer detailed the ugly history, from the Alien and Sedition Acts to the internment of people of Japanese origin in World War II, of excessive deference to the executive branch during wartime.

    While we’re on the topic, I suppose it would be shrill of me to point out that, with innovations like the war on terror and before it, the Cold War, modern society has basically redefined “during wartime” to mean “indefinitely,” thereby rendering even the dubious concept of emergency measures effectively meaningless?

    (No wonder the nineties was when our wingnuts lost what little was left of their mind).

    • Dilan Esper

      Honestly, that cuts both ways and is one reason why this case didn’t simply become Korematsu II and result in quick affirmances for the government.

      Everyone knows we aren’t “at war” in the sense of a total societal commitment to the defeat of an existential enemy with the highest stakes. That knowledge is exactly what makes the courts comfortable with intervening.

      • rea

        Affirmances would not be for the government.

        • Dilan Esper

          Denial of injunction, affirmance, cert. denial.

      • liberalrob

        The modern term is "a time of war," which is completely different from "wartime" and therefore the comparisons with Korematsu are not apt.

    • Hogan

      If you’re going back to the Alien and Sedition Acts, it long predates the Cold War.

      • rea

        Back to the Cold War with France.

      • CP

        True, but those were shot down pretty quickly once a new administration took power.

        Much of the GWOT reforms, by contrast, look to be permanent.

    • Yellow Rose

      Along these lines it was interesting to see the Socialist President of France keep giving himself and his coppers emergency powers.

      • CP

        Oh God.

        Some of it was warranted, I suppose, some of it not so much.

        The fucking Deprivation Of Nationality law suggested for terrorists with a binational status was the worst, picking up a Sarkozy era proposed reform and tweaking it slightly (that one would’ve been for terrorists with a naturalized immigrant status). Thank God, the uproar in the country and in his own party especially was enough to kill the idea. But the whole thing just reeked of “trying to prove that we can be just as good at being right wing as the right wing.” As if that were what they were elected for.

      • sonamib

        The problem was when they made the decision to grant themselves 3 whole months of emergency powers. That’s an awfully long time. It triggered a kind of perverse dynamic, where they were afraid to drop them since if any terrorist attack did happen, people would complain about the government “abandoning” their emergency powers.

        They should have stuck with one or two weeks at most. It wouldn’t be long enough for it to be considered the new normal.

  • DamnYankees

    While I appreciate that some people are harboring the hope that Roberts, being somewhat of an institutionalist and being the deciding vote in favor of the ACA, will be a “reasonable conservative” in standing up to Trump, as opposed to pure hacks like Gorsuch and Alito, it is getting so, so very tiresome.

    At what point will people stop pretending that there’s a cadre of “reasonable conservatives” who will save us? They don’t exist. They will not save you.

    • aab84

      This is a definitional thing, isn’t it? Posner, Kozinski (I know he dissented on this case), Easterbrook, etc. There are a number of judge on federal benches who can easily be described as conservative but don’t mind giving the finger to a Republican president. It’s not all Alitos and Jay Bybees. It’s just that those judges today get weeded out from SCOTUS selection lists. On both sides, actually.

    • Dilan Esper

      They won’t save us.

      But every Supreme Court has a center, whether it was Powell and Stewart, O’Connor, or Kennedy. Much of the discourse about the Supreme Court is about hoping, or sometimes inducing, that center to side with the left.

      • LosGatosCA

        By definition there is a median vote on a 9 member court/board, etc.

        The relation that median has to the ‘centrist’ position in the general population, the electorate, or political positions (left, right, center) is random, since it’s only related to the winning party in past elections at certain times stretching over a 40 year period.

        • Mayur

          Also the median vote right now *should* be Breyer, or at worst some justice between Breyer and Kennedy. Gorsuch being on the Court is the direct product of high treason on the part of Mitch McConnell abetting Vladimir Putin’s attack on our polity.

  • lizzie

    O/T but SCOTUS also just granted cert. in a case about making cakes for gay weddings.

    • LosGatosCA

      Because Trump is far from the only RWNJ politician that’s completely lost their mind.

    • MAJeff
    • Warren Terra

      I feel it’s important to be careful how we talk about this: they didn’t refuse to make a specifically Gay-themed cake, they didn’t refuse to make a cake specifically designed for Gay weddings – they rejected as customers for their perfectly standard range of wedding cakes a couple that happened to be Gay.

      There’s a narrative told that this case is about freedom of speech, which might conceivably be true if the argument were over putting two plastic grooms atop the cake instead of a bride and a groom. It’s not, it’s entirely about rejecting people as customers because they’re Gay – and in some (but not all; maybe not many) states that’s simply not legal.

      • lizzie

        Good point. I’m sorry my comment was kinda sloppy in that way.

        • Warren Terra

          Your wording wasn’t so sloppy, I’m just a bit sensitive to loose phrasing because I’ve seen it posed a million times as imposing a speech requirement on the bakers.

          • N__B

            If the bakers have to accept anyone who walks in the door as paying customers, they're no better than slaves.

            • LosGatosCA

              Broccoli force fed slaves

    • Joe_JP

      In better news, it reaffirmed the same sex marriage decisions, summarily protecting the right of same sex partners to be on birth certificates as applied to an Arkansas law.

      https://thinkprogress.org/neil-gorsuch-anti-gay-bb343eaff08

      Gorsuch wrote the dissent. Roberts technically didn’t state his opinion at all but the message sent is that he was okay with the majority opinion.

      • Just_Dropping_By

        Roberts technically didn’t state his opinion at all but the message sent is that he was okay with the majority opinion.

        Which is consistent with my take that, while Roberts voted against SSM in Obergefell in the first instance, he’s probably not going to vote to overrule Obergefell either.

        • Pete

          I’d be shocked if Roberts voted to overrule Obergefell. That’s not how he operates. He wouldn’t ever be the one to make the leap (as we saw), but he’s also not one to try to leap backwards.

          • Dilan Esper

            By the way, that’s the way the Court is supposed to work.

            The Clarence Thomas routine– “I’ve taken this extreme position for 20 years, nobody agrees with me, and I refuse to apply the settled law based on court precedents and cast real votes on the cases that come up”– is really tiresome and completely ignores his job duties. The law is whatever 5 justices of the Court consistently agree to, and a judge’s job in a common law system is to apply precedents.

            (And yes, liberal justices have done this in the past too. William O. Douglas, the imebicle who is Scott’s favorite, had a bunch of embarrassing concurrences and dissents in free speech and incorporation cases where he couldn’t accept that the smarter members of the Court had outvoted his (and Black’s) position and wouldn’t let it go.)

  • Joe_JP

    Eh.

    The lower courts broadly held up a major executive program partially on the grounds it is unconstitutional. Prime case for SCOTUS to get involved. In still upheld the stay in significant part based on a somewhat open-ended “connections” criteria. And, left the means to have the whole thing declared moot in the end.

    Mixed bag at worse. You can even say that continuing the stay sends a message its tainted. The whole religious liberty / executive overreaching thing is also prime Kennedy bait (see Gitmo cases). But, they might not even get to the merits.

  • liberalrob

    despite the strong evidence of discriminatory intent

    Such as the president*’s public statements? I’d say we’re beyond “strong evidence” and approaching “metaphysical certitude”…

  • El Guapo

    Stupid troll is stupid. Cleanup above.

  • Warren Terra

    So, apparently Trump delighted in the Court’s decision to hear the case being 9-0 (or 9-O as he tweeted it), and the usual brocialist idiots saw this and thought it meant the Court’s liberal justices back Trump’s Muslim Ban. Including Frenemy Of LGM Freddie “Just a humble administrator” de Boer

  • My money’s on the ban being affirmed: Deference to POTUS on issues of national security and all that.

    • efgoldman

      My money’s on the ban being affirmed: Deference to POTUS on issues of national security and all that.

      Unless and until some Christian from one of those countries is banned by Kelly’s Gestapo and sues.

    • LosGatosCA

      This is freebie for Roberts to appear impartial. He appears canny enough to take it. The real test is the non-temporary ban to come.

  • gusmpls

    Man, that picture. I’ve said it before, I went to college in the Reagan years, when college Republicans were at the height of their smug, smirking dickishness. He was one of them. He needs a kick in the sack.

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