Observations on the Travel Ban Decision
26th June 2018
John Hinderaker turns over a rock.
Justice Sotomayor wrote the dissent that Democrats were hoping for. It is a fiery denunciation of President Trump, but one that includes little material relevant to the case. She quotes, at great length, statements that candidate Donald Trump made during the campaign about wanting to restrict all Islamic immigration. One problem, of course, is that the order at issue doesn’t bar all Islamic immigration–it affects only a tiny percentage of it. The fact (if it is a fact) that Trump would have preferred to issue a different order, obviously can’t make the order he did issue unconstitutional.
Justice Sotomayor and Justice Ginsberg, who joined in her dissent, do not shy away from the conclusion that if another president had issued the same order, it would have been valid and constitutional. It is only Donald Trump who can’t issue this proclamation, on account of various statements he made that the justices interpret as being hostile to Islam. If Hillary Clinton had issued the same order, it would have been fine.
I therefore see the Sotomayor opinion (and the Breyer opinion, too, although it is more circumspect) as political, not legal, documents. They reflect the Democratic Party’s continuing refusal to accept the result of the 2016 election. In their view, Donald Trump isn’t really our president: he doesn’t have the powers that any other president would have.
So we have two Justices of the Supreme Court who would have made a blatantly wrong decision for partisan political purposes. I think that’s grounds for impeachment. But that’s me, and I have more testosterone in my hangnail than the whole Republican Congressional delegation.