In contrast to these recent decisions, it was startling to see how completely dismissive the Trump v. Hawaii majority opinion was of the argument that the Muslim ban amounted to unconstitutional discrimination on the basis of religion. “The text says nothing about religion,” Chief Justice Roberts observed. “The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
When I pick up a Supreme Court decision for the first time, I usually start by reading the dissenting opinions, often a reliable guide to the paths not taken by the majority and the arguments that the majority discarded along the way. In Trump v. Hawaii, Justice Sotomayor’s dissent, which Justice Ruth Bader Ginsburg joined, is a Times Square-size billboard of what was missing in the majority opinion.
The majority’s “highly abridged account does not tell even half of the story,” Justice Sotomayor began. What was left out was an inventory, which she provided, of oral and written statements by Donald Trump, as both candidate and president, attesting to his desire to keep Muslims out of the country — directly if possible, or by “politically correct” means if required by the courts.
“The full record paints a far more harrowing picture,” Justice Sotomayor went on, “from which a reasonable observer would readily conclude that the proclamation was motivated by hostility and animus toward the Muslim faith.” She added, “Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the proclamation has a legitimate basis.” To the contrary, she concluded, “It runs afoul of the Establishment Clause’s guarantee of religious neutrality.”
I wonder what the justices who joined the majority in Trump v. Hawaii would think of it if they reread the opinion today. I also wonder what Brett Kavanaugh and Amy Coney Barrett, not yet on the court when the case was decided, think of it, if they have had occasion to read it.
Justice Kennedy’s very short concurring opinion is one of the saddest judicial opinions I have ever read. It was his final published opinion as a member of the Supreme Court. On initial reading, I wasn’t sure what he was saying. I dismissed it as the work of a weary man who no longer had the energy to think the problem through, who took a path of least resistance but nevertheless understood that he was ending his career on the wrong side of history. I took this passage, which he labeled “this further observation,” as an apology for voting with the majority:
There are numerous instances in which the statement 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.
Rereading his opinion this week, I’m inclined to a more generous — or, in the spirit of the moment, a more empathetic — view. Justice Kennedy, appointed to the court by President Ronald Reagan, was departing after 31 years, during the term of a president of the same party as the one who had brought him to the court — as justices often do when they depart. But he was also leaving a cautionary word to the justice who would succeed him and to justices after that.
“An anxious world must know,” he wrote in conclusion, “that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Words of warning, certainly. A note of desperate hope? Perhaps.
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