Just as a quick follow up to Jeff Schmitt’s post below, it is worth pointing out Justice Anthony Kennedy’s very short but extremely unusual concurring opinion in Trump v. Hawaii. I don’t think I have ever seen anything quite like it. Whatever Justice Kennedy hoped to achieve with the concurrence, it seems destined to go over like a lead balloon with both supporters and critics of the Supreme Court’s ruling.
In his two-page concurrence, Kennedy joined in full the majority opinion upholding the Trump Administration’s travel ban, but the justice then went on to use the bulk of his concurrence to chastise implicitly President Trump for his anti-Muslim statements.
It goes without saying that the president’s record of hostility to Muslims is well-documented. In December 2015, for example, then-candidate Trump declared that:
In March 2016, Trump announced, “I think Islam hates us.” After Trump took office as president in January 2017, he asked Rudy Giuliani to come up with a “Muslim ban” that was “legally” defensible. A full list of the president’s anti-Muslim sentiments is available in this May 2017 Washington Post article.
The bigotry expressed by the president on the campaign trail and in office clearly troubled Justice Kennedy. His concurrence concludes with the following:
“In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.
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.”
Well meaning though they undoubtedly are, Kennedy’s words will come as a little solace to the plaintiffs or to the millions of other people affected by President Trump’s executive order severely restricting travel to the United States from 7 countries, 5 of whom are predominantly Muslim.
Quite rightly, the Kennedy concurrence immediately generated scorn from commentators. For example, Rick Hasen argued in a Slate piece this morning that Kennedy’s concurrence is “a general statement of judicial powerlessness to solve social problems and an abdication of responsibility on the part of the courts to enforce key parts of the Constitution, in favor of a plea for self-restraint on the part of elected officials.”
Professor Hasen has it exactly right. The concurrence reads like Kennedy is saying that it is not the judiciary’s job to enforce the free exercise clause and the establishment clause when the president acts within the sphere of foreign affairs. But that cannot be right. Would Kennedy say the same about freedom of speech? He is, after all, the author of the Citizens United opinion, a ruling that took an unwaveringly hard-line view of the First Amendment’s free speech clause.
Whatever the rationale for his Trump v. Hawaii concurrence, it seems certain that the justice’s words will be lost on Donald J. Trump. The president is far more likely to mock Kennedy’s sentiments than learn from them. Kennedy has to know that. So who is the audience he intends to reach with such a milquetoast concurrence?
As always at the end of the Court’s term, there are rumors swirling about that Kennedy may retire in the next week or so. In his Slate piece this morning, Rick Hasen even speculated that Kennedy may be signalling his retirement in his Trump v. Hawaii concurrence. But does the justice really want to end his 30-year Supreme Court career on such a dispiriting note of judicial weakness? We will find out in the next few days.
The important lesson today is that we rule on what the law is, not what liberals think it means and not what a candidate for office said about a hypothetical law different from the one before the court.
For example, if someone were to ask whether a court could force the Red Chicken to serve a cake decorated with the "MAGA" logo, liberals would say "NO WAY" ... because discrimination against political opinion is ok in an establishment serving the public at large. That is because the law is not the issue; for liberals, the law is whatever outcome the liberal wishes (and the identity of the actor, see, e.g., 2014 at the border).
Liberals look only at the result that they want and the party being attacked. If the end is the "right" one, and the party attacked in the "right," in their view, the law be damned.
Here, the court decided that selective and irrelevant quotations -- the liberals stock in trade -- did not require holding unenforceable a law that had nothing to do with "banning Muslims."
Sorry, liberals, but the law didn't "ban Muslims," the president has not suspended due process, etc. He may be at fault for many things, but, liberal hysterics rarely identify the correct reasons one might be outraged.
THis "ban" was not one of those justified reasons for concern.
Posted by: anon | June 26, 2018 at 04:39 PM
^^^anon, Your post is peppered with the word Liberal. I am not sure what a Liberal is. I do know that it is just a label.
What is relevant is that people or good will, like Justice Kennedy are very troubled by the bigoted language and rhetoric of Donald Trump. However, it appears that he wants to preserve the dignity and powers of the President in times of national emergencies. What I really see is not an attack on "liberals" but an attempt by a Supreme Court to save and preserve an Article II entity from the ravings of a mendacious baffoon we elevated to the Presidency.
Posted by: Deep State Special Legal Counsel | June 26, 2018 at 08:04 PM
I doubt that Trump's travel ban would have attracted much opposition, except for (and this is a big except) the massive evidence that he is severely biased against Muslims. (We are not talking about the implicit bias which certain people invoke to accuse all and sundry of racism and other secular heresies.) Not only Kennedy but also Roberts, was worried about this: he went out of his way to overrule the Japanese American Cases. The record of motive hunting in constitutional jurisprudence is not encouraging. Previous examples have mainly expressed the Court's own bias against conservative Christians. Nonetheless, there is such a thing as being blatant: I am tempted to say that one of Trump's problems as a politician is that is not mendacious enough. I share some of 'anon's concerns about liberals: many years around the academic world have made me only too aware of the mendacious baffoons that infest it. (One of them encouraged his followers to threaten a fellow student with anal rape for defending Catholic views on marriage-- at a nominally Catholic school no less.) But how is a religiously and culturally diverse society going to get along without some form of liberalism?
Posted by: Phil Devine | June 28, 2018 at 08:12 AM