My Quick Review of All The Justice’s Decisions In the Supreme Court’s Travel Ban Case.

The Supreme Court just handed down its long awaited decision on the Trump Muslim travel ban. The 5–4 decision ruled in favor of the President, though it did remand the matter back to the lower courts for adjudication consistent with the ruling. As discussed below, one of the dissents suggests a path by which the lower court could still rule against the travel ban in a way consistent with the majority decision.

I provide a brief review of each written decision, including concurrences and dissents.

Majority Decision (written by Chief Justice Roberts): Expresses discomfort with the President’s anti-Muslim rhetoric, and suggests such language should be weighed as problematical. However, in the end, the majority does not give these statements much weight. The core finding is a standard of review under the rational basis test where presumptions favor the government if there is any reasonable constitutional purpose for the policy. The court majority finds the President’s problematic prior statements must be weighed against potentially legitimate policy purposes and the President’s broad discretion in this area. Under this favorable standard of review the court finds in the President’s favor because there are credible justifications for the policy that are not unconstitutional. Notably, the court also heavily considered the exceptions, and case by case waivers, as crucial to passing Constitutional muster under these circumstances. It should be noted that rational basis review is not the typical for Constitutional rights issues, which are usually subject to the much less governmental friendly strict scrutiny review. The majority claims the more deferential standard is justified because this is not solely a domestic matter but is intertwined with the foreign policy powers of the President. The decision is also noteworthy as, for the first time, the Supreme Court finally expressly repudiates the 1944 Korematsu Japanese internment decision. It does so in the context of dismissing as hyperbole the dissent’s comparison of the majority’s decision to Korematsu.

Kennedy Concurrence: Is interesting because it is short, difficult to discern what he is trying to really say, and frankly somewhat weird. Kennedy seems more concerned with the President’s anti-Muslim statements than the rest of the majority. However, without saying who or how, Kennedy seems to suggest that perhaps the duty lies elsewhere to do something about it, rather than upon the courts:

“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do.”

Is Kennedy circumspectly hinting the remedy is with Congress and impeachment? I don’t know, but I don’t think so. In full context, I think his comments were just some finger wagging chastisement that the President (and other officials) ought not to say such things.

Thomas Concurrence: Writes to express his concern that universal or national injunctions by District Courts of Presidential policy are being abused and are not supported by the Constitution. He calls upon the Court to eventually address this question.

Breyer & Kagan Dissent: This really is a clever dissent attempting to outline a path by which, on remand, the District Court could, consistent with the majority decision, still rule against the travel ban. This dissent focuses on the exemptions and waivers, noting they served an important basis for the majority’s decision. Breyer and Kagan argue that “if the Government is applying the exemption and waiver provisions as written, then its argument for the Proclamation’s lawfulness is strengthened . . . [but] if the Government is not applying the system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation’s lawfulness becomes significantly weaker.” This dissent then argues there is evidence “the Government is not applying the Proclamation as written.” The dissent presents some of this evidence before concluding these “anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial fact findings.” While Breyer and Kagan would leave the injunction in place while these factual questions are litigated, they assert “the Court’s decision today leaves the District Court free to explore these issues on remand.” If nothing else, the dissent puts some pressure on the Administration to more liberally apply the waivers and exemption.

Sotomayor & Ginsburg Dissent: Attacks the majority decision for not giving what they regard as sufficient weight to the President’s anti-Muslim statements, ignoring some of the worst inflammatory statements, and ignoring the clear record connecting those statements to the policy. This dissent attacks the application of the far more government friendly standard of review, of the rational basis test, as without precedent, citing the traditional much higher standard of review generally applied to questions of Constitutional rights infringement. The dissent concludes the court majority “redeploys the same dangerous logic underlying Korematsu.” Korematsu is the notorious case finding the internment of Japanese Americans during WW2 constitutional. The dangerous similar logic cited by the dissent includes:

  • In Korematsu, the Court gave “a pass to an odious, gravely injurious racial classification” authorized by an executive order.
  • 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 a particular group’s supposed inability to assimilate and desire to harm the United States.
  • As here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.

Written by

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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