Not that “Justice Editor” at somewhat lefty ThinkProgress, Ian Millhiser, is prone to hyperbole, but the headline of his post on the Supreme Court’s decision in Trump v. Hawaii, gives some insight into his expectations of the Court and lawfare:
Chief Justice Roberts just proved why the courts won’t save us from Trump
What? You didn’t know that was Roberts’ job, to undo the election because the deplorables of America voted for this vulgar, ignorant, amoral, self-aggrandizing fool? Ian’s opening is similarly unflattering toward C.J. Roberts.
Chief Justice John Roberts is either a very stupid man, or he believes that the rest of us are very stupid.
In the first paragraph of Roberts’ opinion in Trump v. Hawaii, handed down on Tuesday, the Chief writes one of the most literally unbelievable lines to appear in a Supreme Court opinion: “the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks.”
And in fairness, writers who share Ian’s concerns about Trump’s blatant animus and are far more knowledgeable than Ian about immigration were sorely disappointed.
Under the court’s Trump-specific analysis, just about any official indignity that unduly burdens the lives of minorities or marginalized groups within our borders may well be tolerated. All the president has to do is not say the quiet part loud, issue an order that isn’t blatantly discriminatory, and maybe claim some national-security prerogative under existing law. Do those things, and legal success is virtually guaranteed. With the court taking this view, not even the Constitution can be expected to stand as a check on Trump.
The axiom, bad cases make bad law, was turned on its side in this case. In this case, a president who said outrageous and offensive things, part of the reason he was elected as they reflected the ignorance and bigotry of his “base,” exercised a power that clearly belonged to his office.
The majority justices, no less committed to the amendment’s prohibition against government discrimination against particular religions, nevertheless emphasized the importance of distinguishing between the “statements of a particular President” and the “authority of the Presidency itself” — including Section 212(f).
Had another president done what Trump did, it would have been uncontroversial. But then, would any other person who attained the office of the presidency have been so flagrantly biased in doing so?
The court now justifies the broad authority of the political branches over immigration in terms other than naked racism. But papering over the racial origins of the political branches’ sweeping immigration authority can do only so much. While the ideas behind the plenary-power doctrine may no longer be acceptable (at least in certain circles), invoking the president’s near plenary authority over immigration allowed the court, in effect, to turn a blind eye to racism.
Granted it was religious discrimination here, not racism, but why bother with trifles? There is a conceptual ledge when the issue is immigration, that has become obscured by the language of the discussion. There are varying classes of people subject to the ban. Some, such as legal permanent residents, have very different rights than visitors, students or foreign nationals who wish to make the United States their new home.
Congress decided that not every person who wishes to enter into the United States gets to do so at will. Congress further decided that certain decisions about who gets to enter are vested in the office of the president. It would be fair to say that no one would have anticipated a person holding that office who was so flagrantly offensive in his bigotry and ignorance, and had the question been raised while such a person held office, Congress may well not have given that person the authority to make such decisions.
But the authority had already been established, before the madman took office.
Which is why the entry-ban case shows how the plenary-power doctrine enables presidents and Congress to get away with blatant racism in immigration decisions. As Justice Sonia Sotomayor observed in her dissent, the majority “blindly” accepted “the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security.”
This represents a division that’s come to permeate our politics. Does the end justify the means? Are we a nation of laws or men? Can there be such a thing as “TrumpLaw,” a rejection of the entirety of principled jurisprudence because this one person sitting in the president’s chair is so horrible, so unacceptable, so blatantly racist, that to give him the presumption of regularity as president would be suicide?
There are some who say that, who mean that, who believe with their broken hearts that this buffoon is the end of the world as we know it. And by issuing a decision that is stunningly correct and obvious for any person other than Trump, the Supreme Court has become complicit in his destruction of America rather than its salvation.
So what can be said in this moment? Perhaps this — that Mr. Trump’s travel ban is of a piece with the man himself. We may not be able to look into the president’s soul, but we can look at his words and actions over the last half century.
We’ve had bad presidents before. Evil presidents, one of whom sacrificed 58,220 lives in southeast Asia for a war he knew to serve no purpose and we could not win. His rhetoric was somewhat less outrageous than this one, but his actions were far worse. And still we survived.
The question posed to Chief Justice Roberts and the associate justices of the Supreme Court is whether their job is to sustain the institutions upon which a nation must rely if it is to survive this temporary occupant of the office, or burn the office to the ground because it’s currently held by Trump.
The majority chose to save the institution of the presidency rather than save the impassioned from this offensive moron. The Court saved the law, and through it, the nation. After Trump is gone, America will still be here, and will still be America. What we make of it after Trump is up to us.