The Supreme Court appears to be one of the few judicial bodies that – at least some of the time – is able to separate the noise of political rhetoric from the actual text of documents under consideration.
The court unanimously — yes, liberal and conservative justices agreed! — decided to overturn significant portions of injunctions that had been ordered by lower courts on President Trump’s revised temporary travel ban on most citizens from six countries in the Middle East – Iran, Libya, Somalia, Sudan, Syria, and Yemen. These countries, the media endlessly remind us, are “majority Muslim.”
They are less likely to remind us that their beloved President Obama had designated those nations, plus Iraq, as “countries of concern” in a law he signed in December 2015 that restricted (it did not outright ban) travel to the U.S. from those countries. This, the administration said at the time, was to address “the growing threat from foreign terrorist fighters.”
The Supremes didn’t hand Trump a victory on the merits. They simply lifted the injunctions and scheduled the case to be heard in October, which could render it moot, since it would be after the 90-day pause that the Trump order sought.
But the high court did, in a low-key way, point out that it is not the role of the courts to decide cases based on reckless tweets or overblown campaign rhetoric, but with what is written before them.
Yes, courts are unavoidably political – they are created and operated by human beings. But the goal – and it is a much more worthy goal than too many in the other two branches think – is to be as non-political as possible. It is to be an arbiter of whether a law, or in this case an executive order, complies with the Constitution – not whether it flows with or against the political winds of the day, not whether it is “compassionate” or “mean-spirited,” not whether it complies or not with a justice’s political philosophy. Not even whether he or she thinks it would be good or bad for the country.
Those issues are for the other two branches of government – executive and legislative.
For the courts, the questions are hard but relatively simple: What does the law say? What does the Constitution say?
And the injunctions imposed by the lower courts – the Fourth and Ninth circuit appeals courts – were far too much about political noise and not nearly enough about the text of the order.
Yes, President Trump has been, as is true in so many cases, his own worst enemy regarding the order.
During his campaign, he did indeed call for a ban on Muslims entering the U.S. It sounded like a blanket ban – no limits on specific countries, no exceptions.
And that was apparently enough for the Fourth Circuit Court, in its opinion, to base its ruling on the president’s “desire to exclude Muslims from the United States.”
Which should have been irrelevant. What was relevant was what the actual order said.
Anybody who read the order would see it is far from an outright ban – as one legal analyst put it, it is “riddled with exceptions.” Most of those already comply with the parts of the injunction that the Supremes allowed to stand – among them that the ban won’t apply to foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.”
It is a temporary – 90-day – pause on immigration from those countries, aimed at giving the U.S. time to put together a more effective way to vet those immigrants.
And it is not a “Muslim ban,” Trump’s rhetoric notwithstanding. Not even close.
As even liberal analysts have noted, it has no effect on nearly 90 percent of the Muslims in the world.
The role of the courts is not to divine the motives of a president or members of Congress and base their rulings on that. Yet, that is what the circuit courts did, which reeks of political bias.
They don’t like Trump – his motives, his style, his rhetoric, his philosophy, his party, his policy proposals – and therefore no matter what is written in an order from him, they will swat it down.
They may as well add “#resistance” to their Twitter handle.
Which may get them endless applause from the coastal elites and the rest of the progressive “resistance” movement, but it drastically undermines the credibility of the entire judicial branch.
If a court is nothing more than a super-legislature, why have it at all? Why have a panel of nine, six, three or even just one black-robed authority decide legal issues based on political philosophy, no matter how laudable you might think that philosophy is?
That is vastly less “representative” than Congress.
And lest you think this kind of thing would only happen because of a president like Trump, recall President Obama’s insistence, when he was pushing his signature legislation, Obamacare, that the penalty for failing to buy insurance (the individual mandate) was not a tax.
Then, after the law passed and the individual mandate was being tested before the Supreme Court, the Obama administration argued that the penalty was, indeed, a tax.
While I don’t agree with the court’s ruling in that case, the justices were correct to ignore what Obama had said during the debate on the law and simply to look at what was in front of them.
That is what all courts should do, no matter who is in power, no matter if they have “Not My President” buttons in their closets.
Thankfully, some of that loyalty to the law, and not politics, is still present on the Supreme Court – the entire Supreme Court.