Splitting the difference is sometimes the closest approximation to justice achievable when judges rule in contract and family disputes. When the liberty protections in the U.S. Constitution are involved, however, splitting the difference is an evasion of judicial responsibility. Consider the Supreme Court’s June 26th decision on the Muslim Ban in Donald J. Trump v. International Refugee Assistance and Donald J. Trump v. Hawaii.
The two cases began as applications for injunctions against Executive Order No. 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States, a.k.a. the Muslim Ban. That Oval Office diktat temporarily barred foreign nationals from seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – based supposedly on heightened concern about terrorism. Federal lower courts granted relief and the Justice Department sought to defend the Muslim Ban by appealing for a stay of the injunctions and for a writ of certiorari, or asking the Supreme Court to rule on their constitutionality. On June 26th the Supreme Court unanimously agreed to stay the injunction with respect to the ban on admitting refugees though not for non-refugees. A writ of certiorari was also granted. This was enough for Donald Trump to tout the decision as a victory.
What motivated the decision? At least five of the Justices recognize that the legitimacy of our most important American political institutions is fraying. Trump is the least legitimate U.S. President in modern history because of collusion between his presidential campaign and the government of Russian President Vladimir Putin. Partisan gerrymandering and dark money have rendered the U.S. House of Representatives and many state legislatures increasingly unaccountable and unresponsive. The refusal of Senate Republicans to consider President Barack Obama’s nomination of Merrick Garland to the Supreme Court and Trump’s subsequent appointment of Neil Gorsuch has further eroded popular belief in the political impartiality of the Supreme Court. Conservative news sources and social media have produced an ideologically rigid electoral base for the Republican Party, whose extremism is echoed by an increasingly militant Left. So uncertainty and fear may have motivated them.
The Justices may also have gambled that future events – Trump’s resignation – will moot the dispute. To describe the current administration as ‘damaged’ is an understatement. Trump does not have the respect or trust of a majority of Americans. Congressional Democrats are united in their determination to get to the bottom of Russiagate. Congressional Republicans know that Trump is an expensive liability, his erratic performance has undermined what they wanted to accomplish and yet he remains dangerous to oppose because his populist supporters could deny them reelection in GOP primary races in the most gerrymandered districts.
Then there is the Supreme Court’s own rationale: “balancing the equities” of national security against “hardship” and “burdens” depending on the identity of the individuals seeking admission. Any claim of national security by the administration was deemed sufficient, even one that blocked foreign nationals from countries that had produced no terrorists in the United States but allowed in foreign nationals from counties that had, viz., Iran and Iraq versus Saudi Arabia and the United Arab Emirates (The Atlantic). Weighed against that was hardship imposed on those “with some connection” to the United States and which thus might “burden some American party.” So family members of citizens and legal residents as well as newly hired employees of firms in the United States and students admitted to American schools were deemed worthy of protection. Those who escaped the ravages of war and sought to find refuge in a country that once referred to itself as “the land of the free and the home of the brave” were deemed unworthy. Of course a cynic might conclude that the Supreme Court just wanted to appease a President by sacrificing the powerless. If victims are needed to appease Trump’s Islamophobic supporters, then let them be refugees said nine jurists, none of whom had ever been forced to flee war or tyranny.
Thinking about constitutional law is likely to elicit comparison with religious teachings. The ritual elements shared by courts and houses of worship, the peculiar partial logics of the law and of religious dogma, and the frequent deployment of ultimate justifications makes comparisons drawn between the work of judges and clergy inescapable. So too does the fact that religious bigotry motivates many Trump supporters. So readers, when you ask whether the Supreme Court did justice on June 26th, consider this scripture fragment from Proverbs 21:3 (KJV):
“Every way of man is right in his own eyes: but the Lord pondereth the hearts. To do justice and judgement is more acceptable to the Lord than sacrifice.”