The Supreme Court’s decision ultimately upholding the ban was important for both legal and political reasons. Just as significantly, however, it set an important societal precedent.
The Supreme Court’s decision ultimately upholding the ban was important for both legal and political reasons. Just as significantly, however, it set a clear societal precedent — telegraphing to Americans and the world where we are as a nation, and where we are going.
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First, the law still matters, and the travel ban case was important for purely legal reasons. It helped define the boundary between the power of the president to set immigration policy based on national security claims and an individual’s right against discrimination on the basis of religion and country of origin.
Second, the case was significant politically. While there were certainly plenty of people whose lives were and continue to be affected by the ban, the case was carefully watched as a measure of Trump’s momentum on a key campaign promise: immigration. Specifically, people wanted to know if Trump could severely restrict Muslim immigration, or if the nation’s most powerful court would stop him. The court signaled that it would not act as a safety valve, at least in this important case, against Trump’s worst impulses. It likely also gave Trump political momentum and more than a little confidence as he set about advancing other immigration priorities.
And third, the case answered a more existential question about who we are as a nation. Are we a nation in which our three branches of government continue to serve as checks and balances? The judicial branch is designed to act as check against potential political overreach by the executive (and the legislative) branches. So how should judges treat an executive order written by a president who has said he wants a “total and complete shutdown of Muslims entering the United States,” but does not on its face target Muslims? How much should political statements effect judicial decisions?
Writing for a bare majority of the court, Chief Justice John Roberts ignored context and history, concluding that the "issue before us is not whether to denounce the statements.” Roberts looked only at the face of the third version of the travel ban and found that it passed constitutional muster, ignoring all of Trump’s previous statements about the purpose of the ban.
And if the Supreme Court continues to issue 5-4 rulings in hot button cases, are we a nation in which the judicial branch will continue to function? All of the justices appointed by Republican presidents voted to uphold this Republican president’s immigration order. All of the justices appointed by Democratic presidents voted against the order. The judiciary will and should lose its legitimacy if it becomes just another unelected, unaccountable political branch. Judges are tasked with applying the facts of each case to the applicable law, regardless of the political outcome. Legislators, of course, have a very different job and must always have an eye towards politics and policy goals.
The judiciary will and should lose its legitimacy if it becomes just another political branch.
And let’s not forget the history that made this happen. I have two words for you: Merrick Garland. After Justice Antonin Scalia passed away in February of 2016, Republican Senate Majority Leader Mitch McConnell refused to grant a hearing to Garland, President Barack Obama’s nominee for the vacancy. If Judge Garland had become U.S. Supreme Court Justice Garland, there is little doubt that the travel ban would have been overturned. In other words, McConnell’s obstructionist tactics paid off — in spades. The travel ban decision is the most high-profile example of why the composition of the Supreme Court matters. But it is also a look at how the increasing partisanship in Congress is having an impact.
The travel ban decision showed Americans who we are as a nation. But it also solidified to the rest of the world what Trump’s America stands for. Trump’s America is a place where the president can say he wants to ban a certain religious group from entering the country. It is a place where the president can unsuccessfully try — twice — to implement that ban, and then finally stumble into a third ban that looks more neutral only when all context is ignored. It is a place where the world’s most powerful court says that ban is legal.
So when we look back at the most important legal decision in 2018, the travel ban decision will always stick out. Legally, it gave the president broad authority in the areas of immigration and national security and ran roughshod over the rights of individuals to be free from religious discrimination. Politically, it gave the president an enormous win and the momentum to continue his anti-immigration agenda. It severely damaged our nation's standing as the so-called leader of the free world. And it served as an important reminder that the Supreme Court is not going to save America from Trump.
Jessica Levinson is a professor and the director of the Public Service Institute at Loyola Law School, Los Angeles. Her work focuses on election law and governance issues. She is the former president of the Los Angeles Ethics Commission.