What I found most absurd in Chief Justice John Roberts’ majority opinion in Trump v. Hawaii (the Supreme Court case that upheld the White House’s most recent Muslim travel ban) wasn’t the predictable, blind-eyed endorsement of xenophobia, nor was it the gag-inducing praise of Trump’s communication skills and subsequent dismissal of reasonable contentions against the ban by the state of Hawaii, nor was it the lunatic reasoning that it wasn’t the Court’s place to determine the potential national security consequences—which it isn’t, but still contradicts the notion of ruling on the basis of rationality. Rather, what stood out to me was Roberts’ response to the second of two contentions by the state of Hawaii challenging the travel ban under the grounds of violating federal immigration laws, specifically 8 USC 1152(a)(1)(A), which former Deputy Attorney General Sally Yates notably mentioned in her testimony to the Senate Judiciary Committee last year, providing that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.”
Roberts’ response to this contention was that if this law was always followed by executive administrations (which it hasn’t; Roberts mentioned President Reagan’s suspension of Cuban immigration and President Carter’s denial of Visas to Iranians), “the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war.” In layman’s terms, he’s not exactly arguing against the inherent direction of the law, he’s suggesting that there are special circumstances to bypassing it, special circumstances that, by his words, include epidemics and conflict.
Just in case the Chief Justice is reading this: hey, Mr. Roberts. I’m a college sophomore who thinks he knows more than you do. Since when is unsubstantiated danger driven by xenophobic sentiment comparable to health epidemics and military conflict? (And it is unsubstantiated; no national of the countries included in the proposed Muslim bans—Iran, Iraq, Libya, Somalia, North Korea, Venezuela, Syria, Sudan, and Yemen—has committed a single lethal attack on American soil since 1975 [source, source].) The provision in question may have been the only peg Hawaii could hand its argument on, and Roberts, Chief Justice of the United States, has looped around it like trained dog on an obstacle course. This is partly because of Roberts’ shortsightedness for what really constitutes a national security risk, and the slippery-slope consequences of the reckless presupposition that vetting concerns somehow constitute the same scale of danger as that of the Zika virus or some spontaneous armed conflict. With this precedent, the Court has effectively stated that simply being worried about something without empirical evidence—with nothing but unsubstantiated fear—is grounds to ban immigration based on nationality, to discriminate based on religion.
I blame two parties for this debacle. The first is John Roberts (and to a degree the other majority justices, but Roberts wrote the opinion). The second is the state of Hawaii.
To clarify that provocative statement: no, the plaintiffs hold no responsibility for the reckless decision of the Court. After all, they are the ones standing up for what’s right. However, they do share a portion of the blame in arguing what they did. Framing is incredibly important for arguing such a difficult case in front of such a divided Court. For one, it was easy to predict the Court’s use of the rational basis test, which meant that a different route could and should have been taken. Perhaps Hawaii should have pursued an argument that deliberately appealed to conservative principles, like a preference for laws established by Congress rather than executive action, which, given Roberts’ aforementioned rumination on national security and special circumstances for circumventing Visa issuance, could be framed as a federalism issue instead of a discrimination issue: let Congress redefine immigration policy instead of allowing the executive branch to simply bypass it, especially if the ban isn’t an immediate priority, which it wasn’t and isn’t.
Additionally, pushing the Establishment Clause as an ideological crutch in case the legal argument failed—which it did—may as well have been the epitaph on the gravestone. Trump v. Hawaii may be a case that we look negatively on twenty years from now, and scholars then will note that the firm reliance on ideology instead of material legal arguments doomed itself. The plaintiffs spoke of Muslim immigrants as if they were naturalized American citizens, which was like handing an easy victory to conservatives on the Court. Preaching about the benefits of diversity, the melting pot nature of American society, and condemning xenophobia could and would never win over justices who require hundred of pages of jurisprudence to justify a decision. The state of Hawaii’s approach to this case didn’t speak to the justice system; it spoke to public opinion, especially left-wing public opinion, which is why it won in the circuit courts and failed in the Supreme Court.
Legality and constitutionality is a giant game of chess, and it doesn’t care much for sentimentality. Maybe Elena Kagan and Ruth Bader Ginsburg do, but Roberts, Gorsuch, Thomas, Alito, and most pivotally Kennedy don’t. At the very least, it's foolish to assume that they do.
Photo credit Masha George, Creative Commons