The Supreme Court has ruled in favor of the Trump administration's
travel ban in a 5-4 decision. The media and political reactions have been
predictably partisan, though it is clear some of the journalists and
politicians haven’t actually read the opinions.
The majority opinion was written by Justice Roberts, and is
a closely reasoned 39 page (and I think correct) argument, with short concurring
opinions by Justices Kennedy and Thomas. Justice Sotomayor wrote an impassioned
and emotional dissent (which she read from the bench) which Justice Ginsberg
joined, and Justice Breyer wrote a more scholarly dissent which Justice Kagen joined.
All of these can be found in their entirety here.
I think it is a correct decision because the relevant section
of the law, Section 212(f) of the Immigration and Nationality Act reads:
Whenever the President finds
that the entry of any aliens or of any class of aliens into the United States
would be detrimental to the interests of the United States, he may by
proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or any class
of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate.
The wording is absolutely unambiguous. It provides for no consideration
of the President’s motives or his thought process. It simply says that he can
use his judgement in making the decision, and so the court was correct to
overrule the lower court judges, who based their rulings on presumptions about
Trump’s motives or biases. In fact I seriously doubt that Trump actually has
any personal animosity toward Muslims in general – it was just a useful
political tool in the wake of 9/11 and the jihadists attacks around the world.
There can certainly be reasonable arguments about whether
the policy was wise, and in fact Justice Roberts wrote “We express no view on the soundness of the policy”. But there is no
question that is was legal, and it is not the function of the unelected judges
of courts to decide whether polices are wise or not, just whether they are
legal. It is Congress’s prerogative, with elected representatives, to decide if
a policy is unwise, and to write laws to change or restrict that policy.
In that respect Justice Sotomayor's impassioned and emotional dissent
is a little disappointing. It was unworthy of her as a Supreme Court Justice. I
certainly respect her passion for social justice, which she is free to express
as a private individual, but it is inappropriate in the context of a judicial
ruling, which should be based on the law, not on ones’ personal political or social
leanings. Judges of course are human, and do have personal political and social
leanings, but justice is supposed to be blind – they are supposed to put those personal
preferences aside and rule on the text of the law. And Supreme Court justices
are supposed to be a model for the rest of the system. That is the context in
which I say that Justice Sotomayor’s dissent was disappointing.
Justice Thomas’ concurring opinion was interesting. He calls
into question the legality of district federal courts issuing universal
rulings, that is, rulings that affect the entire country instead of just the district
the court covers. Both the Hawaii court and the D.C. court used universal rulings
to halt the administration’s implementation of the orders. I think Justice
Thomas has a point. There appears to be no statutory authority for a district
court to issue a universal ruling.
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