Quote of the Day:
Donald Trump is so polarizing that a test of his Presidency is whether American institutions can keep their bearings and hold to principle despite the passions of the moment.
–Wall Street Journal editorial this morning
Five Supreme Court Justices showed that they could keep their judicial bearings and rule on the law yesterday with the decision that upheld the Trump administration's "travel ban."
What you think about the travel ban, which restricted entry into this country by people of from dysfunctional countries, mostly majority Muslim, because of problems in vetting them, is not the point.
Here is what, in the words of the Journal, mattered:
The ban in our view isn’t necessary, and the Court made no judgment on the policy merits. But Chief Justice John Roberts and four conservative Justices found that the ban falls well within the President’s core national-security powers. This is less a victory for Mr. Trump than for the ability of future Presidents to defend the country.
There was great hysteria that somehow this travel ban violates the guarantee of religious liberty, though religion is never mentioned in it. There was also insistence that Candidate Trump's inflammatory statements should be taken into consideration, regardless of not being anywhere in the law.
Justices are charged to rule on the law as written, however. Colorful campaign statements were not part of the law. Justices Sonia Sotomayor and Ruth Bader Ginsburg did not understand this:
In their dissent, Justices Sonia Sotomayor and Ruth Bader Ginsburg note that some former government officials disagree with the necessity of the President’s order. But as the Chief reminds his colleagues, “we cannot substitute our own assessment for the Executive’s predictive judgments on such matters.”
Chief Justice Roberts also upbraids the two liberal dissenters for the cheap shot of hauling in the Court’s regrettable Korematsu decision upholding internment camps for Japanese-Americans during World War II. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” the Chief writes.
A “forced 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.”
It should also be noted (as National Review does in another editorial) that the Court observed that no alien has a right to enter the U.S. The right to allow some one to come here or to be excluded, according to the Court, is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”
Justices Stephen Breyer and Elena Kagan also dissented from the majority opinion. The editorial suggests that they "went through the motions" of writing a dissent just didn't want to side with the majority.
The Court yesterday also delivered an opinion that upheld our right to free speech.
In a 5-4 decision the Court held that pro-life pregnancy centers cannot be required to inform clients that abortion is an option and provide phone numbers of abortion providers.
As with the travel ban, the immediate cause of the lawsuits–the abortion issue–isn't the concern. Coerced speech is.
Another Journal editorial sums it up:
Writing for the 5-4 majority, Justice Clarence Thomas says the law requires the services to advertise abortion, “the very practice that petitioners are devoted to opposing.” The California law, he writes, compelled the services to provide a “government-drafted script” and thus violates their First Amendment rights.
The California law was written only to apply to pro-life clinics. The California legislature had said the law was part of the state's "forward thinking." Justice Kennedy replied:
In reply, Justice Kennedy writes, “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it.” He concludes: “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
Strong stuff. Anyone aware today of the pressure being brought on disfavored speech or ideas, whether on campuses or in state legislatures, should welcome the Becerra ruling.
The Supreme Court in these two decisions shows itself to be removed from the hurly burly of our political arena, as the Court was designed to be.
Note that both decisions were 4-5.