Supreme Court’s Double Whammy
Two 5–4 Rulings This Week Validate Huge Power Grabs By Trump And Republicans, And Provide A Virtual Playbook On How To Expand Those Powers Even Further
1. The “Travel Ban”
The reaction to the Supreme Court’s 5–4 “usual suspects” decision to OK the President’s “travel ban” runs the gamut from “correctly upheld” (the Conservative Cato Institute), to “a decision that will live in infamy” (Bloomberg). As usual, scotusblog has a really good summary of the issues and the opinions. So does NPR.
We thought instead of piling on, we’d use our space today to present some of the voices of the Supreme Court Justices themselves, on paper at least, and let you consider the reasoning behind their decisions. Here’s a link to the entire decision. It is actually surprisingly easy-to-read, which is a hallmark of both the author of the majority opinion, Chief Justice John Roberts, and of the dissenting opinion, Justice Sonia Sotomayor.
• Roberts writes:
“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 by the President and his advisers 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.”
As we often note, we are not legal scholars (so as usual, you lawyers out there please correct us if we’re wrong and we’ll update). But two things about this jumped out at us:
1. Roberts more than anything seems to be dismissing the approach of lower courts which looked at Trump’s Tweets and statements and rally speeches as expressions of the President’s actual intent in drafting the “travel ban”. Meaning — while perhaps not completely definitively — Trump’s Tweets and statements and rally speeches don’t mean a damn thing when put up against Presidential powers. While even a Supreme Court Justice may or may not agree with the sentiment contained in the Trump missives, the order itself is considered “neutral” and in a different realm.
2. If that’s the case, the reasoning seems to us somewhat circular: Trump’s repeated Tweets and statements saying he’s targeting Muslims, in effect don’t count because the President’s got a valid concern about national security. How do we know this? Because the President says so. So on the one hand we’re supposed to ignore his statements about intending to expressly exclude Muslims, but on the other we’re supposed to accept his statements about national security, which then gives him the authority to do whatever he sees fit, without finding it infringes on religious freedom? After writing this, we came across a really good article in the Washington Post that takes it even one step further: suggesting the ruling is something that could “embolden Trump in remaking the U.S. immigration system” (the Washington Post). That story is really interesting (and scary) and well worth a read.
• Justice Sotomayor, in her dissent, addresses Justice Roberts’ conclusion head-on, right off the bat:
“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.”
“As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements….Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country….The answer is unquestionably yes.”
• Roberts, however, is busy reiterating:
“…because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification”.
• Meanwhile, Justice Anthony Kennedy, while agreeing with the majority, writes a concurring opinion that reminds us? our government? the world? to remain committed to the liberties provided by the U.S. Constitution.
“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 outwards, and lasts.”
Sorry, but this seems like Kennedy’s trying to have his cake and eat it too. Because short of a dissension, it’s toothless. There seems to us one very important sentence missing: the one that contains the phrase “or else”. Or else it just makes us wonder: or else what?
Or else…there are rumors Kennedy will retire at the end of this term. And while we do our best to steer clear of speculation, this sure reads like parting advice from an “elder statesman”.
• Justice Clarence Thomas is downright threatening in his concurring opinion: scolding federal courts for issuing injunctions blocking the “travel ban” on other Presidential orders from going into immediate effect. He’s not shy about the “or else” when he writes:
“In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”
Just a couple of days ago, Justice Thomas celebrated his birthday with President Trump in the Oval Office. Trump Tweeted about it:
2. The Texas Racial Gerrymander Case
Another big ruling this week let Texas off the hook for gerrymandering that was judged by a panel of judges to be racially based. It was also a 5–4 “usual suspects” decision. Once again, here’s a review from scotusblog. Here’s a link to the entire decision (but be warned: this one’s really opaque).
What’s particularly interesting about this decision is that the majority opinion, written by Justice Samuel Alito, practically hands anybody who might want to do a racial gerrymander a handbook. This despite the fact that racial gerrymandering is expressly forbidden by the Equal Protection Clause in the 14th Amendment, and the Voting Rights Act President Johnson signed in 1965. That law forced several states including Texas to get special pre-clearance for changes to voting rules from the Federal Government. That’s because those states were found to have been discriminatory in the past. Except that part of the law was done away with by the Supreme Court in 2012, with Chief Justice Roberts writing at the time that it was “based on 40 year-old facts having no logical relationship to the present day”.
As a quick aside, it was Justice Alito who in 2010 mouthed “not true” during President Obama’s State of the Union address when Obama criticized the Court’s Citizens United decision saying: “With all due deference to separation of powers…the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests…to spend without limit in our elections.”
Now Alito writes:
“While the Equal Protection Clause imposes these important restrictions, its application in the field of districting is complicated. For one thing, because a voter’s race sometimes correlates closely with political party preference…it may be very difficult for a court to determine whether a districting decision was based on race or party preference.”
And he quotes a ruling in a 1995 case:
“[I]n assessing the sufficiency of a challenge to a districting plan,” a court “must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus….And the “good faith of [the] state legislature must be presumed.” (Our emphasis.)
Cal Irvine Law Professor Rick Hasen calls that part of the decision “audacious” and “aggressive” and explains that it opens the floodgates to voter suppression.
Alito also writes:
“…it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legislature acted with invidious intent.”
That wasn’t always the case. The now defunct pre-clearance process wasn’t only intended to root out intentional wrong-doing. It was aimed at assessing the impact of redistricting, and that minority voters weren’t put at a disadvantage, whatever the intent.
But seems to us, with Alito’s guidance (even if he doesn’t intend to deliberately do so), if we were state legislators who wanted to do a racial gerrymander but were afraid we wouldn’t get away with it, we’d now know precisely what to say and what to do to pass muster and do whatever the hell we want.