Does the Supreme Court care whether America is free or slave? That was the question 160 years ago, and it remains the question today. The result in Trump v. Hawaii is happier than that of the notorious Dred Scott v. Sanford, but that may only be a happy accident.
The 5-4 decision upholding President Trump’s travel moratorium from seven nations, including some in the Middle East, was even narrower than most observers expected. Yet, it might just as easily have been 7-2 in favor, or have been 5-4 against. The conclusion of Justice Anthony Kennedy’s two-page concurring opinion underscores this ambiguity:
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. (Emphases added.)
Kennedy’s flightiness could easily have put him with a more temperate opinion from the dissenters, just as Stephen Breyer and Elena Kagan’s aversion to Trump’s campaign rhetoric could have been resolved in favor of concurring with or even joining the majority opinion. It’s noteworthy the liberal pair did not join Sonia Sotomayor’s blustery dissent with Ruth Bader Ginsburg— quite possibly the most frivolous opinion ever written in Supreme Court history.
That split among the liberal appointees reflects the difference between the older and the Progressive factions of the Democratic Party. Opinions on both sides of the decision seem more dictated by politics (despising Trump) or by Kennedy’s musings than by constitutional law. Is this a House oversight hearing or a judicial decision? (Thanks to John Marini for inspiring the comparison.) Is it too much to ask that we see some serious thinking about the rule of law?
The Constitutionalism of Thomas
While Chief Justice John Roberts’ opinion for the majority was on-target with the law and separation of powers principles—with one major exception I will come to—Clarence Thomas’s concurrence went to the heart of the constitutional, that is, the existential issue. His was the opinion that most forcefully laid out the constitutional consequences of the dangers we face in the world and the subsequent need for a hierarchy of the ends of government (following the old natural law reasoning of America’s Founders).
Thomas maintains that “the President has inherent authority to exclude aliens from the country”—a pure Article II executive power claim. Moreover,
the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad.
That is, aliens are not part of our social contract and, unless they hold property, cannot have legal claims against the United States. Thomas lashes out at the lower court judicial despotism of “universal injunctions,” which finds federal district courts prohibiting the executive branch “from applying a law or policy against anyone” and thus “preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” These are how the travel cases gradually made their way to the Supreme Court. I would add to Thomas’s analysis that these courts are guerilla partisan political units, losing any legitimacy as courts. They are “legally and historically dubious,” their authority problematic. Now they can draw inspiration from the dissents.
When the ACLU Oversees National Security
It’s difficult to think of Roberts’ opinion as anything but a series of ironic dismissals of the suit, combined with sneers at Sotomayor’s fantastic dissent. “Unlike the typical [Establishment Clause] suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad.” We think of the court’s earlier zealous, ACLU-inflicted rulings on Christmas displays on public land now used as weapons against national security. Could the president be enjoined judicially from prohibiting Santa and his reindeer from entering the country? Does Jesus need a passport?
In addition, the Trump travel moratorium “is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office.” The reality show host, along with other, conventional candidates, has to be judged by his tweets and campaign blather. The Supreme Court has now to make sense of his motivations, not just here but in every case? Madness!
Roberts dismisses the application of violation of religious liberty standards (“strict scrutiny”) “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” (i.e., “rational basis”).
In desperation, Sotomayor compares the court opinion to the infamous Korematsu v. United States, the ethnic Japanese exclusion of World War II. Roberts snaps,
Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
Sotomayor’s reference to Korematsu, however, affords the court an opportunity to make plain 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,” as Justice Robert Jackson wrote in his dissenting opinion at the time.
In response, the dissent claims the court “was finally overruling” the notorious Korematsu case. (See my objections to conventional understandings of the relocation.) But I wonder whether the dissent (and not a few legal pundits) bit on some Roberts’ chum that was intended to make Sotomayor appear a foolish fish. It is, therefore, mere dicta, not an “overruling.”
Hardships of War and Duties of Citizenship
In this limited space, I raise just a few questions about Roberts’ remarkable rhetoric here. First of all, what is the jurisdiction of “the court of history” that overruled Korematsu? Is this Hegel’s Weltgeschichte become Weltgericht (“World-History” become the “World Court/Final Judgment”?)
Second, what Roberts passes off as a summary of Korematsu is clearly wrong on key points, even when taking the perspective of the dissenters in that case. “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” Though a majority of those relocated to centers were U.S. citizens, most of those were minors. The great danger lay among the first generation immigrants (including my father), who could not become U.S. citizens under the laws of the day and still felt close ties to their homeland, now the enemy, asking for national devotion from its sons and daughters abroad. To quote from that court opinion,
Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.
Finally, neither Roberts nor Sotomayor mentions Korematsu’s inextricable relationship to its companion case of ex parte Endo, announced the same day, putting an end to the “concentration camps,” which could not continue to hold loyal U.S. residents. Both the Korematsu majority and the unanimous Endo court sought to contain a despotic policy and renew a Constitution already battered by Progressive assaults on rights. Korematsu is limited to the first phase of the relocation process—the assembly centers—and Endo forbade the government from constraining the loyal (who had already been permitted to leave the centers to find work or education).
It’s hard to believe Roberts or his clerks would have missed such obvious points. But it’s even more difficult to state frankly the costs of war. The Korematsu court opinion maintained
[H]ardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier.
Who can openly say such truths today? They weren’t known as the greatest generation for nothing.
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