Supreme Court

Supreme Court Rejects Challenge to "Travel Ban"

In a narrow, 5-4 decision, the Supreme Court overturns lower court injunction against Travel Ban 3.0, while also declaring Korematsu has been overruled.

|The Volokh Conspiracy |

Today the Supreme Court handed down two 5-4 decisions along traditional ideological lines, NIFLA v. Becerra (rejecting California's compelled disclosure requirements for crisis pregnancy centers) and Trump v. Hawaii (reversing lower court injunction against the Trump Administation's "Travel Ban").

In Trump v. Hawaii, CHief Justice Roberts wrote for the five-justice majority. Justice Kennedy wrote a concurrence emphasizing the narrowness of the decision. Justice Thomas wrote a dissent concerning the increasing use of nationwide injunctions. Justice Breyer wrote a narrow dissent, joined by Justice Kagan. Justice Sotomayor wrote a more full-throated dissent, joined by Justice Ginsburg. Both dissents raised concerns about whether the immigration Executive Order was tainted by religious animus.

Here is the opening from Chief Justice Roberts' decision for the Court:

Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry "would be detrimental to the interests of the United States." 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.

The Court notes the Justice Department argued the Executive Order was not subject to judicial review under the doctrine of consular nonreviewability. Although this claim presents a "difficult question," Roberts explained that the Court would assume that the plaintiffs' statutory claims are reviewable for purposes of the case.

On the statutory question, the Court concluded the President has the authority to limit entry.

By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs' attempts to identify a conflict with other provisions in the INA, and their appeal to the statute's purposes and legislative history, fail to overcome the clear statutory language.

Turning to the claim that the Executive Order reflected impermissible anti-Muslim animus in violation of the Establishment Clause, the Court accepted that at least some plaintiffs had standing to raise this claim, but rejected the plaintiffs' claims on the merits, stressing the highlhy deferential standard of review applied in the immigration context.

For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." . . . Because decisions in these matters may implicate "relations with foreign powers," or involve "classifications defined in the light of changing political and economic circumstances," such judgments "are frequently of a character more appropriate to either the Legislature or the Executive."

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and selfdescribed "revolutionary Marxist," Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional "right to receive information" was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a "facially legitimate and bona fide" reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that "when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification" against the asserted constitutional interests of U. S. citizens. Id., at 770. . . .

The upshot of our cases in this context is clear: "Any rule of constitutional law that would inhibit the flexibility" of the President "to respond to changing world conditions should be adopted only with the greatest caution," and our inquiry into matters of entry and national security is highly constrained. . . . We need not define the precise contours of that inquiry in this case. A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. . . . For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government's stated objective to protect the country and improve vetting processes. . . . As a result, we may consider plaintiffs' extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.

Applying this deferential standard of review, the Chief Justice found that Travel Ban 3.0 passes muster.

Also of note, the Court explained that upholding the Trump Administration policy in no way legitimates or relies upon prior Court decisions upholding Japanese internment during World War II. To the contrary, here's what the Chief Justice said about Korematsu:

the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." 323 U. S., at 248 (Jackson, J., dissenting).

The Court's decision reversed the grant of the preliminary injunction and remanded the case to the trial court, where the case may continue.

The Chief Justice's opinion is narrow on its own terms. It is even more so read in light of Justice Kennedy's concurrence, as Justice Kennedy provided the fifth vote for the judgment. Justice Kennedy wrote:

I join the Court's opinion in full.

There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is "inexplicable by anything but animus," Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today's decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.

In all events, it is appropriate to make this further observation. There are numerous instances in which the statements 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.

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

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  1. Left wing tears are my joy.

    1. Sounds like a sad life, given how much liberal-libertarian progress has been effected by Americans against the hopes and efforts of Republicans and conservatives during my lifetime.

      Unless you also enjoy muttering bitterly about all of this damned tolerance, science, education, and reason.

      1. I love your REEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEs, please keep on REEEEEEEEEEEEEEEEEEEing. Your tears of unfathomable sadness are a wonderful thing.

      2. Speaking of all this ” all of this damned tolerance, science, education, and reason”…

        Harvard Rated Asian-American Applicants Lower on Personality Traits, Lawsuit Says

        Quote:
        Harvard consistently rated Asian-American applicants lower than any other race on personal traits like “positive personality,” likability, courage, kindness and being “widely respected,” according to an analysis of more than 160,000 student records filed Friday in federal court in Boston by a group representing Asian-American students in a lawsuit against the university.

        Asian-Americans scored higher than applicants of any other racial or ethnic group on admissions measures like test scores, grades and extracurricular activities, according to the analysis commissioned by a group that opposes all race-based admissions criteria. But the students’ personal ratings significantly dragged down their chances of being admitted, the analysis found.

        “It turns out that the suspicions of Asian-American alumni, students and applicants were right all along,” the group, Students for Fair Admissions, said in a court document laying out the analysis. “Harvard today engages in the same kind of discrimination and stereotyping that it used to justify quotas on Jewish applicants in the 1920s and 1930s.”

        1. Why are you not arguing that maybe Asians are just culturally or genetically predisposed to be less good at leadership or likeability, Kevin?

          Live by the Bell Curve, die by the Bell Curve.

          Or don’t and wonder if maybe the playing field isn’t as even as it looks for blacks either…

          1. Why are you not arguing that maybe Asians are just culturally or genetically predisposed to be less good at leadership or likeability, Kevin?

            That doesn’t fit the facts. The people who actually conducted the interviews of Asian applicants rated them highly on those personal characteristics. It was the admissions officers, in a feeble act of subterfuge regarding their racial discrimination, that scored Asians low in these categories.

            1. To be clear – I know it was a rigged system. But if you accept that the results on standardized tests are gospel and that racial correlation is causation, why isn’t this the same?

          2. In your view a subjective rating like “personality” is equivalent to objective ratings like test scores?

            Wow… this is why you failed at sciences.

            1. Quantitative is not the same as objective.

              And my point is that correlation is not the same as causation.

    2. “Left wing tears are my joy.”

      Yes but be careful. You may drown today.

    3. Making this country less safe brings you joy?

      1. Less safe how?

  2. ‘We overrule Korematsu’ is conservative for ‘Korematsu rules!’

    1. There has already been an American President who put American citizens in concentration camps.

      Liberal Democrat and progressive icon Franklin Roosevelt.

      http://en.wikipedia.org/wiki/Executive_Order_9066

      The dark cloud of fascism is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

  3. It should have been a nine to zero decision upholding the travel restriction and striking down the ability of district courts to issue national injunctions.

  4. Yeah, it turns out that temporarily suspending travel from Yemen due to expressed security concerns doesn’t establish an official US national religion. Who would have guessed?

    1. You are monumentally naive.

      1. I try not to see things that aren’t there. It’s infuriates people who try to motivate me by telling imaginative stories.

        1. NToJ is many things, but a liberal bard is not one of them.

        2. Most bigots do not want to be known as bigots any more.

  5. Thomas wrote a concurrence, not a dissent.

  6. Here’s how one of my friends is spinning it (and my head is spinning repeating it, but I will here). Le sigh:

    Three years ago today the Supreme Court legalized gay marriage and FB was filled with love.

    In the last month, a stolen Court has: allowed racially gerrymandered voting; allowed businesses to discriminate based on religious beliefs; allowed an entire religion to be banned from entering the country; allowed your voting rights to be stripped if you don’t vote in every election. If you’re not scared, you’re not paying attention.

    1. “stolen Court”

      HA, HA, HA to infinity HA!

      This makes my heart sing!

      1. Maybe aspire to be one step above RightWingStrawManButReal, Bob.

        As I said many times on these threads, I was not optimistic about how this would go before the Court, (though I obviously hoped for the opposite ruling). But unlike the children separation thing, I had some kind of emotional distance from this dumb policy. And not everything that is bad policy is unconsti….etc etc.

        I was also interested in the contours of animus, and this does open the door to that, even if it declines to go through at this point.

        1. The “stolen seat” refrain is one of the dumbest things ever.

          I will continue to laugh at those who say it, even if it makes you sad.

          1. Hillary’s popular vote is almost as dumb.

          2. Eh, I can see laughing at that particular angle, even if I have a great deal of sympathy for that feeling myself.

        2. Basically, the majority wasn’t going to reach animus if the executive gave a good reason for the policy, and they did give a good reason for the policy.

          If the list of nations had been utterly irrational based on the given justification, they might have gone there. But it wasn’t, the list was perfectly sensible.

          On the contrary, it was the case that, if the list had been motivated by religious animus, then it wouldn’t have made a lick of sense. And the Court noticed that, too.

          1. Your analysis is about what mine would be.

            I differ with the Court as to whether the list is sensible, but that’s why they’re Supreme and I’m an Internet commenter.

            A list motivated by animus and pretextual attempts to cure would look a lot like the list at bar, IMO.

    2. In the last month, a stolen Court has: allowed racially gerrymandered voting;
      AS is required under the VRA

      allowed businesses to discriminate based on religious beliefs
      Prevented activists from cramming their religious beliefs (anit religious beliefs down some elses throat

      ; allowed an entire religion to be banned from entering the country;
      permitted the federal government to maintain its soveriegnty – you may have notice that the particular religion in question wants to A) impose their laws on you B) Kill infidels – which means you and c) wants to treat women as slaves

      allowed your voting rights to be stripped if you don’t vote in every election. allowed states to purge voters who fail to maintain their voter registration. the federal law had two requirements – nice of you to intnetionally omitted the second requirement .

    3. allowed your voting rights to be stripped if you don’t vote in every election

      This is such an incredibly stupid reading/complaint.

      No, you do not lose your voting rights if you don’t vote. If you don’t vote and then don’t tell them you want to remain registered after not voting for years, you have to register again if you want to vote in the future.

      Boo fucking hoo.

      1. (and yes, I realize it wasn’t you who wrote that)

  7. Overruled in the court of history.

    I’m not surprised, especially on the First Amendment issue. The attempts to distinguish Mandel are just utterly unpersuasive. Footnote 5 of the dissent argues that it’s different because Mandel was one person but here there is a class of people. Is that how the First Amendment works? You can violate one person’s First Amendment rights for free? Mandel needed to be overruled to win on that issue.

    I don’t know immigration law well enough to evaluate the statutory argument. The majority’s explanation is more coherent than the dissents, although that might be because the majority is 1000 foot level while the dissents are 50 foot level. Still don’t buy that the non-discrimination clause in 1152 doesn’t come into play at least partially.

    Didn’t know about United States vs Verdugo-Urquidez. They should teach that case in con law. It’s pretty damn important.

    1. Actually, you can distinguish Mandel, but it cuts against the First Amdt argument.

      In Mandel, the plaintiff professors claimed that their own First Amendment rights were infringed by the denial of entry to the “Marxist Revolutionary.”

      Here, the plaintiffs are not claiming their own First Amdt rights were infringed. Rather they are bootstrapping a claim that the Government is violating the First Amendment in the abstract (or with regard to non-resident aliens) by denying admission to Muslims as a class.

      I reject the notion that the First Amendment precludes excluding classes of people based on religion. It is non-controversial that the Govt could ban classes of people based on political beliefs or party membership. That would plainly be barred under standard First Amendment jurisprudence, so I see no principled reason for treating religion differently.

      1. This is incorrect. Read Section III of Mandel. The court concluded Mandel himself didn’t have standing. Only the “appellee professors, because they wish to hear, speak, and debate with Mandel in person” had standing.

        1. ?? That was exactly my point. In Mandel, the plaintiff-appellee professors (rather than the “Revolutionary Marxist” Belgian) were claiming infringement of their first amendment rights – and the court dismissed their claims out of hand because the President had filled out the form correctly.

          In Hawaii, the plaintiffs are not even claiming that their own First Amendment rights were being infringed, so the dismissal should be even more perfunctory than in Mandel, if such a thing were possible.

  8. Bull Cow must be on suicide watch. Month after month of snarky, snide arrogant posts, boldly declaring how President Trump was going to lose at the Supreme Court, and now, he’s wallowing in his tears of unfathomable sadness.

    Hey Bull Cow, please post! I want to drink those liberal tears!

    1. Every day the Conspiracy enables Bigoted, Authoritarian Mini-Me to masquerade as me is a good day for exposing conservative character and standards.

  9. Disappointing that this was 5-4. I actually didn’t think the 4 would take the atrocious position that this violates the EC.

    1. Failing the ideological Turing Test is no way to go through life, ML. For all the back-and-forth discussion on this blog, I’d think you’d at least see that reasonable minds can differ from yours.

      Though I will give you credit for being more gracious than some here.

      1. “Though I will give you credit for being more gracious than some here.”

        Should we go back and review the “gracious” liberal comments after the Obamacare case or the gay marriage case?

        We don’t get a lot of big wins with Roberts and Tony around so we howl when we do.

        As does your side.

        1. Citing the other side’s bad actions to rationalize your own is not a sign of strong character, Bob.

          I not this because I expect you can do better. You ain’t that RightWingHater. You can celebrate what you think is a good thing without reveling in others’ misery.

          Plus, if you do it right, being gracious may just be delicious in it’s own way by making it a bit harder for those on the losing side to take refuge in blind partisanship.

          1. Given that the “other” is a group of anti-American leftist traitors, reveling in their misery sounds reasonable, just like it would be reasonable to celebrate in the misery of the Nazis post-WW2.

          2. “without reveling in others’ misery”

            No fun in that.

            1. We have a lot of fun in similar ways, Bob. For myself, I resonate with the whole ‘killing with kindness/living well is the best revenge.’

              Though I will admit in real life I am a bit more of a pushover than I’d like.

      2. Reasonable minds can differ on some things and less so on others. I’m interested in reading the dissents but my initial impression is that this position isn’t very reasonable.

        1. Well, at least you’re going to read and consider. Again, better than many.

    2. you really thought there was a chance that the four would ever vote to allow the ban?

  10. I wonder why the court disregarded the ‘animus’ argument here but accepted it in the Masterpiece case.

    1. That animus argument for this case was garbage.

      1. Chief Justice Roberts disagrees with you.

      2. The animus argument needed Mandel overturned to win. It wasn’t garbage, but it was wrong based on prior Supreme Court precedent.

    2. Level of review. Masterpiece was about alleged religious animus against US Citizens on US soil. Trump was about alleged religious animus against non-U.S. Citizens on non-U.S. soil.

      1. So what level of review was applied to Masterpiece?

        1. Under Mandel, the court is limited to reviewing whether the policy is facially legitimate. So no extrinsic evidence regarding the legitimacy of the order is reviewed (so comments by Trump displaying animus, the sufficiency of the evidence I support of the national security concerns). Under church of lukumi, once a person produces evidence of regions animus sufficient to rebut a facially neutral law or discriminatory application of a facially neutral law, the standard of review is strict scrutiny.

          1. Yes, I get that, I was just asking whether in the Masterpiece case the court articulated any kind of threshold of review, or whether you think (like I do) that the evidence of animus was enough to doom the Colorado whatever Commission’s decision regardless of what else was going on. I mean, in typical Kennedy fashion, the Masterpiece majority opinion isn’t exactly consistent with a threshold + assessment type of approach…

            1. Masterpiece doesn’t lay out the threshold+assessment framework very well. Church of Lukumi does.

            2. I don’t think threshold of review + assessment really applies when reviewing a judicial or quasi-judicial proceeding like the Commission’s hearing at issue during the Masterpiece case. I doubt an ALJ hearing immigration cases would be able to get away with making anti-Islamic comments during the proceedings, regardless of how neutral the underlying law was.

              1. I agree that jph12 highlights a key distinction. We don’t tolerate any animus from a judge. (Or quasi-judge.) The standard is much higher for them than for rulemaking bodies.

          2. I don’t buy that Church of Lukumi/Hialeah would apply in the context of 1182(f) at all. I don’t even think Mandel should have applied in this case, because the plaintiffs were not arguing that their own First Amendment rights were being infringed (as had the plaintiffs in Mandel).

            1. See my comment above, The court clearly states in the opinion Mandel does not have standing in the case.

              1. Mandel strengthens my argument — the Court made it clear that Mandel, the visa-seeker, had no standing to assert any constitutional right to entry, first amendment or otherwise.

                “It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Galvan v. Press, 347 U.S. 522, 530 -532 (1954); see Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952).”

                It was only the appellees, who claimed a first amendment infringement, that had standing, and they still lost on the first amendment claim.

    3. “accepted it in the Masterpiece case”

      Among other reasons, the comments in Masterpiece were delivered by a quasi-judicial officer in the course of the administrative adjudication.

    4. From Masterpiece Cakeshop, 7-2 joined:

      “”[T]he Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. . . . In this case, however, the remarks were made in a very different context?by an adjudicatory body deciding a particular case.”

      1. Right M.L., so what’s the difference here?

        Why couldn’t the court simply say: “”[T]he Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the President’s (or DHS or INS or TSA, etc.) adjudication of foreign applicants’ cases.

        1. This wasn’t a particular case nor an adjudicatory body. It was an EO frankly similar to legislation.

          Regardless, “animus” is largely a joke, IMO. You’re either prohibiting the free exercise of religion, or you’re not. You’re either establishing a state religion, or you’re not. It doesn’t matter one bit whether you intended to do that or you didn’t intend to do that, it just matters if you’re actually doing that.

    5. No need to wonder. It’s bigotry. All the way down. Leavened with superstition and general backwardness.

      Carry on, clingers.

      1. No turtles? I was told there would be turtles.

        1. The turtles are just another myth to confuse the gullible.

          1. If I call them dark turtles, do they suddenly become scientific?

    6. Because there was evidence of animus in the Masterpiece case. There is evidence of Trump’s anti-Muslim opinions, but opinions are not “animus” unless causally related to the action being challenged. In this case, the “ban” was on five Muslim countries, one Muslim-Christian country, one Christian country, and one Atheist country. Only 8% of the world’s Muslims were covered, and the ban was based on facially neutral criteria that Trump didn’t even develop (Obama did). When two Muslim and one Muslim-Christian country fixed the issues, they came off the ban. The Christian and Atheist countries are still on the ban with the three other Muslim countries. All this is the case even assuming the President doesn’t have very broad power to exclude classes of aliens, which the Court reaffirmed that he does. This is a losing issue for the Dems, but I’m perfectly happy to see them waste political capital on it.

  11. Anyone notice that sotomayer demands that we discriminate in Shuttee and Ricci yet objects to discrimination in Abbot and Trump

    1. Sotomayor and Ginsburg consistently adhere to the leftist cause of the day, not to any mundane Constitution or statutes.

      1. If you support the government making laws that single out specific religions for no good reason, you might want to be careful what you wish for…

        1. Singling out Islam is not “for no good reason.” You might think some lofty ideal is paramount and trumps that reason, but that doesn’t mean that the reason doesn’t exist.

          1. Mary [Brennan-Fowler], who had been at the Court when Brennan’s bloc reigned supreme, tried to comfort him by saying, “You had your day. Now they have theirs.” “Yes,” Brennan replied. “But I’m right.”

          2. That may well be (it isn’t), but the Court didn’t really give much of an indication that they cared one way or another. And that should worry all religious people.

            1. You can protect religion generally while recognizing and acknowledging that Islam is diametrically opposed to the West and should not be protected. Since Islam is not just a religion in which individuals privately and harmlessly worship their god but a political ideology of world conquest, Islam does not deserve First Amendment protections under our Constitution. Once that is understood and established in law, we should start to limit Muslims’ free exercise of their religion, and then they will voluntarily start to leave.

              1. 1. Ideologies are protected under the First Amendment. Sedition isn’t a thing these days.
                2. Why can’t I say the same thing about certain more theocratic evangelical sects?

                1. Lazy.

              2. You can protect speech generally while recognizing and acknowledging that Republicans are diametrically opposed to our values and should not be protected. Since Republicans are not just a political party in which individuals privately and harmlessly espouse their views but a political ideology of world conquest, the Republican Party does not deserve First Amendment protections under our Constitution. Once that is understood and established in law, we should start to limit Republicans’ free exercise of their speech, and then they will voluntarily start to leave.

                Martinned is correct. Be careful with how much power you wish to imbue your government with in making normative judgments about people’s religious/philosophical beliefs…

  12. So anti-religious animus is bad even when no actual prejudice has been shown, but racial animus is often fine?

    1. How is the recent racial and religious animus in the Netherlands working for you?

      1. Which animus might that be? Is there something you’ve heard on Infowars that you’d like to share with the class?

  13. Surely the statement on Korematsu is obiter?

    1. Who knew anyone would bother with disingenuous virtue signals?

  14. The Breyer/Kagan dissent seems to me particularly weak. They focus entirely on the waiver provisions, and their reasoning is that, if the government is granting waivers to individuals from the listed countries, that would tend to demonstrate that the order was not driven by anti-Muslim animus. See dissent, p. 2-3 (“And that fact would help to rebut the First Amendment claim that the Proclamation rests upon anti-Muslim bias rather than security need. Finally, of course, the very fact that Muslims from those countries would enter the United States (under Proclamation-provided exemptions and waivers) would help to show the same thing.”).

    But that exact same reasoning would apply to the 92% of Muslims who are from countries that are not covered by the order at all, and who thus freely enter the country. If admission of Muslims is relevant to show lack of animus, there is no reason whatsoever why the focus should be solely on Muslims from countries subject to the proclamation. If anything, failure to grant lots of waivers to people from those countries, while simultaneously admitting people from other Muslim countries, would tend to show that the reason for the order is country-specific, rather than religion-specific.

  15. Kennedy’s concurrence is so infuriating.

    1. Hopefully, the reason he felt the need to write it was because he’s retiring tomorrow.

      1. Good riddance. If I were a House member, I’d have already told a staffer to start drafting articles of impeachment on the grounds that being a Justice requires exercising judgment, which is the antithesis of having faith people will follow rules they aren’t made to follow, and his concurrence is therefore prima facie evidence he’s no longer “in good behavior”.

  16. This appeasement of intolerance and ignorance is disappointing, but I am content to recall history (spoiler: the bigots don’t win in America over time) and wait for the backlash. Those cheering a series of 5-4 decisions favoring conservatives may soon enough be lamenting a series of 6-5 decisions favoring their betters.

    Cue the soundtrack.

    1. The parody of intolerance – A culture that demands adherence to their religion and demands that women be treated as chattel – A progressive that believes he is the enlightened and tolerate one because he is embracing the intolerant culture.

  17. Is anyone else bothered by the way the chief turns korematsu into a racial Animus decision when it was a nationalist one? It’s not like all Asians were in concentration camps. Seems like the chief is saying the immigrant concentration camps are legit.

    1. Jaypd – Roberts was responding to the dissents inclussion of Korematsu. Roberts was only pointing out that koremastu was not even remotely on point since Korematsu was as an american citizen of japanese descent while the travel ban applies to non – US citizens who are not on US soil and have no other legal basis or constitutional right to be on US soil.

    2. One somewhat ironic result of the recent teeth-gnashing on the border is that the likely solution will be to set up desert internment, errr, detention camps to hold families while their asylum claims are processed.

      1. The difference being that those people can leave whenever they want.

  18. This makes no sense:

    The Chief Justice’s opinion is narrow on its own terms. It is even more so read in light of Justice Kennedy’s concurrence, as Justice Kennedy provided the fifth vote for the judgment. Justice Kennedy wrote:

    How does he start?

    I join the Court’s opinion in full.

    Hmm, not very “limiting”

    What’s he say?

    in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs

    And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.

    In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.

    What’s that? “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” Why, that sounds like “this is not a proper question for the Courts”

    So, could you explain to us what part of what Kennedy added was “limiting” to Trump?

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