Summer and the Supremes

Way, way back in our wide-eyed youth we had a swell summer job as messengers for the Supreme Court of the United States, and although most of it was spent lazily in the court’s summer adjournment we got to be there for the big day when it announced its final decisions of the session at the end of June. At this point we can’t recall what any of the cases were about, and are too lazy to look it up, but we well remember how very historic it seemed to our young and hayseed sensibilities at the time.
The latest version of the Supreme Court headed off to its summer vacation by issuing three notable decisions, and we took a livelier interest in that. One had to do with President Donald Trump’s executive order that either restricts or limits or bans travel from six Muslim-majority countries, depending on what you want to call it, and two others that concerned the religious liberty of the dwindling minority of traditional Christians in America. For the most part we were pleased with the results, but noticed enough wiggle room in the majority opinions to suggest that none of these issues have been definitively settled. Most Supreme Court opinions are like that, as we’ve noticed over the past many decades of avid court-watching.
Trump probably isn’t bored with winning yet, but he can claim at least a partial victory in the case of Trump v. International Refugee Assistance Project.
As for the facts of the case, the plaintiff had challenged the defendant’s constitutional authority to impose restrictive new rules regarding travel from the aforementioned six Muslim majority countries. Each of those countries contains a troublesome number of potential radical Islamist terrorists, and the Constitution’s plain language grants the chief executive broad powers to restrict entry to the United States for almost any old reason he chooses, but the underlying statutory authority also mentions some prohibitions on religious discrimination, and the First Amendment has been broadly interpreted to back that up. The plaintiffs argued that Trump’s loudly and clearly stated campaign promises to ban all Muslims from entering the United States for any reason demonstrated the discriminatory intent of the new rules, the defendant’s counsel argued that the rules didn’t amount to a ban at all, but rather were reasonable restrictions and limitations, the defendant himself then “tweeted” that, no, it darned sure was a travel ban, and all the lower courts in all the liberal jurisdictions had found for the plaintiffs.
The highest court found by a surprising unanimous decision that pretty much any old president does indeed enjoy broad powers granted by the plain language of the constitution to restrict entry to the country for any old reason he might choose, and for the most part it lifted the stays that had been imposed by the lower courts. Even when the president is Trump this pleases our originalist Republican souls, and although we don’t doubt he he does have an Islamophobic bias the restrictions on those specific locations seemed reasonable even to the rather Islamophilic administration of President Barack Obama.
Some limits remained on the president’s broad powers to restrict entry to the country, however, and the court conspicuously decided not to weigh in on that matter of whether Trump’s campaign promises proved an intention of religious discrimination, and whether that matters or not, and it seems clear that the first executive order Trump issued would have fared far worse than what he called the “watered-down politically version” that the court eventually ruled on. The first one arbitrarily revoked already-issued green cards even to such well-vetted entry-seekers as translators for the American military who were fleeing for their lives, and was a political as well as a legal disaster, and even Trump was careful not to use the word “ban” when crowing about his victory, which resulted in a better and less controversial policy than the one he wanted.
The high court has put off until next fall any consideration of whether the crazy things Trump sometimes says about his arguably reasonable policies should have any legal bearing, and that will be a decision to watch for. An astute writer for the Venerable National Review compellingly argues that it would be unprecedented for the court to consider a president’s rhetoric in assessing his actions, but we’re sure other astute writers at that publication will admit Trump’s rhetoric is also unprecedented, and there’s no telling how even the most hidebound Republican originalist jurist might come down on the decisions that are no doubt looming during the Trump presidency. That travel ban was supposed to be for the 120 days Trump needed to impose “extreme vetting” on travelers from those countries, and he claims that they’re now in place, although no one can explain what they are, so we can well imagine the court might just leave those unresolved until something more relevant comes along.
There was the same sort of ambiguity in the case of Trinity Lutheran Church v. Comer, although it was also mostly a win for the good guys as far we’re concerned. The plaintiffs, who operated a religiously-affiliated children’s school in Missouri, alleged that the defendant, a bureaucrat in the state’s educational bureaucracy, had violated their First Amendment rights by declining to pay for some safety-enhancing improvements to its playground. By another surprising margin of seven to two the court found that religious schools providing a good education to tax-paying citizens who also paid for the public schools are entitled to the same taxpayer support as the public schools that are generally providing a lesser education. The decision included some of the same legal weasel room and also deferred broader questions to another date, but it had the effect of doing away with a long discredited but still on-the-books anti-Catholic law, and got two of the more liberal Catholics on the court on board with the Lutherans, so we count it as a win.
In the other big decision the Supreme Court merely decided that come sometime after next fall they will consider the case of Masterpiece Bakeshop v. Colorado Civil Rights Commission. The plaintiffs allege the defendants fined them in the violation of their First Amendment for declining to bake the cake for a same-sex wedding, so that should be a big story sometime next fall. We have friends who are married to people of the same sex, and we have friends who choose for reasons of conscience not to participate in that, so far as we can tell they are all peacefully coexisting, in some cases quite convivially, so we hope the Supreme Court will choose to not interfere with this mostly happy state of affairs, but these days, when even the Republican president is chiding the Republican convention for its reluctance to embrace Gay-Lesbian-Bi-Transgender-and-Questioning causes, there’s no telling.
Another big hubbub on the final day of the Supreme Court’s session was about the possible impending retirement of Justice Anthony Kennedy, who’s currently the last of the swing votes that decide those five to four decisions, and at least one of those reliably liberal justices surely can’t hold out much longer, so Trump seems likely to influence future decisions. We liked Trump’s first pick, who voted for the defendant in that Trump v. International Refugee Assistance Project case, expect he’ll be obliged to appoint similarly originalist justices in the future, and hope they’ll put the constitutional brakes on his craziest rhetoric at some point in the future.
It all starts up again on the first Monday in October, as we still remember from the tours we led as part of our Supreme Court messenger duties, and in the meantime we’ll follow baseball and wait to see how it all turns out.

— Bud Norman

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