Wednesday, June 27, 2018 at 7:47 AM

Court Ruling on Travel Ban Affirms Justices Are Just as Tribal as Politicians

Posted by Anthony L. Hall

I pointed out in my June 24 commentary below that there’s nothing new about the tribalism that now defines life in America.

I cited many commentaries in which I lamented how this became a defining feature of political debates. But I could have cited just as many with respect to judicial decisions on most hot-button issues (like those related to abortion, immigration, guns, homosexuality, and race), which present clear tribal/ideological litmus tests.

Here, for example, is how I lamented this feature in “Supreme Court Rules Voter ID Laws OK,” October 18, 2014:

Neither this decision, nor its breakdown along partisan lines, should surprise anyone who knows anything about the ‘politics’ (as opposed to the legal reasoning and judicial precedents) that inform this Court’s rulings. For the one thing that distinguishes this Court is that the justices Republican presidents nominated invariably vote on the side of issues that affirms conservative ideology; whereas those Democratic presidents nominated invariably vote on the side that affirms liberal ideology.

This is why I used the death of arguably the most ideological justice in the history of the Court to write its epitaph as a judicious and non-tribal institution:

Conservatives and liberals on the Supreme Court have devolved into little more than glorified hired guns for the Republican Party and Democratic Party, respectively. This is why Republicans will consider it an article of faith to obstruct confirmation of any Obama nominee. After all, if appointed, this justice would tip the balance of the Court towards affirming Democratic (a.k.a. liberal) politics.

(“Antonin Scalia, Pugnacious Justice of the US Supreme Court, Is Dead,” The iPINIONS Journal, February 14, 2016)

Incidentally, a dismaying feature of rulings that fall along party lines is the way justices strain credulity, and even defy their intellect, to rationalize political dogma. Which brings me to today’s ruling on President Trump’s controversial (Muslim) travel ban:

The Supreme Court ruled Tuesday that President Trump has the authority to ban travelers from certain majority-Muslim countries if he thinks it is necessary to protect the United States, a victory in what has been a priority since Trump’s first weeks in office and a major affirmation of presidential power.

The vote was 5 to 4, with conservatives in the majority and Chief Justice John G. Roberts Jr. writing the opinion.

(The Washington Post, June 26, 2018)

Duh.

In fact, I can think of only two hot-button issues in recent times where this tribalism (i.e., ideology rather than reason) was not determinative: One was the Court’s ruling on the constitutionality of Obamacare; the other was its ruling on legalizing same-sex marriages. I duly hailed these judicial anomalies in “Supreme Court Upholds Obamacare … Again; Will Legalize Same-Sex Marriages … Too,” June 25, 2015, and “Supreme Court Rules Same-Sex Marriages Legal Nationwide,” June 26, 2015, respectively.

This is why today’s ruling on Trump’s travel ban came as no surprise. This, especially given the open and notorious Gorsuch stunt Republicans pulled to stack this Court in their favor. I decried it in “Nomination of Gorsuch to Supreme Court Affirms Politicization of Judiciary,” February 2, 2017.

For the record, though, here is how I commented on this travel ban in “Nordstrom Rejects Trump Brand. Court Overrules His Travel Ban,” February 10, 2017.

____________________

Honestly, I couldn’t be less interested in joining the gam of sharks bloviating on this topic. Not least because it was clear from the outset that it amounted to nothing more than fodder for lawyers to engage in sound and fury, signifying nothing to do with keeping America safe. …

Of course, Trump has been the bloviator-in-chief in this regard. And, with trademark bluster, he is threatening to take court rulings against his ban all the way to the Supreme Court. But I suspect he’ll just have his lawyers redraft the executive order to have no practical impact on immigration whatsoever.

After all, any redraft would necessarily end up merely restating provisions of the ‘extreme vetting’ the Obama administration put in place years ago. Arguably, this explains why, despite all of Trump’s fear-mongering rhetoric, no terrorist has been able to use the refugee stream to perpetrate an attack in the United States on Obama’s watch.

____________________

Sure enough, lawyers ended up redrafting his travel ban to the point where the “version 3.0” the Court ruled on today bears little resemblance to the original, which Trump vowed as a presidential candidate to implement:

‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,’ he said.

(The Washington Post, December 7, 2015)

In fact, this version of Trump’s travel ban

  • does not even mention Muslims;
  • affects less than five percent of the worldwide Muslim population;
  • includes the non-Muslim pariah nations of Venezuela and North Korea as patent foils; and
  • allows people from the seven countries affected to enter the United States if they can show they pose no terrorist threat, which presumably 99 percent of them would be able to do.

Not to mention the most salient fact that none of the many terrorists who have carried out attacks in the United States since 9/11 came from any of the seven countries this version 3.0 targets. Indeed, nothing betrays Trump’s misguided animus and specious concerns about national security quite like the fact that Saudi Arabia, where most of the 9/11 hijackers came from, in not affected.

Like I said from the outset, a controversy, full of sound and fury, signifying nothing. Mind you, listening to Trump gloat, you’d be forgiven for thinking the Court ruled today that he can ban all Muslims as he fantasized along the campaign trail.

But you don’t have to take my word. Because here is how CNN reported today on Trump himself admitting just weeks ago that this ban is much ado about nothing:

On June 5, Trump said the Justice Department should seek a ‘much tougher version’ of the ‘watered down, politically correct version’ that was submitted to the Supreme Court.

And since only a portion of the ban will go into effect – limiting people from six majority-Muslim countries with no US connection from entering the US — it’s essentially a watered-down victory for his ‘watered down’ travel ban.

Which is why the most significant thing the Court did today was affirm my contention that its rulings on hot-button issues have much more to do with political affiliation than legal reasoning.

I rest my case.

Related commentaries:
voter ID
Scalia
Obamacare
Gorsuch stunt
Court overrules travel ban
Stupid voters

* This commentary was originally published on Tuesday, June 26, at 6:43 p.m.

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