Two 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:
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:
“…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”.
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:
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 avoid getting caught red handed, leaving us in a position to do whatever the hell we want.