Chief Justice John Roberts treated Donald Trump as if he were any other president.
Impossible, responded Justice Sonia Sotomayor.
As the 5-4 conservative majority of the Supreme Court upheld Trump’s travel ban on nationals from certain majority-Muslim countries, the nine justices implicitly revealed for the first time how they regard a commander in chief who repeatedly insulted Muslims and more broadly has mocked the rule of law and constitutional norms.
At bottom, five conservative justices signaled that even though they might not like what Trump has said, they will look past it – in Tuesday’s case and possibly in future disputes over administration actions related to immigration.
“This is an act that could have been taken by any other president,” Roberts said from the center chair of the bench on Tuesday.
Roberts wanted to make clear that the majority was not ignoring Trump’s anti-Muslim remarks, but concluded that they lacked legal significance. Sotomayor, joined by Justice Ruth Bader Ginsburg, acknowledged that Roberts’ opinion recounted some of Trump’s inflammatory statements. But, she declared, that “does not tell even half of the story.”
One of the most dramatic moments in the courtroom came as Sotomayor paused after reading aloud a litany of Trump remarks, including “Islam hates us” and “we’re having trouble with Muslims coming into the country,”
“Take a brief moment,” she said, “and let the gravity of those statements sink in.” She said such hostility was not expressed by just anyone; it was the man who is now President.
“Our Constitution demands, and our country deserves,” Sotomayor said in her written opinion, “a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”
Her message: Trump is so unconventional he cannot be treated conventionally.
Roberts was unconvinced.
Suggesting a degree of normalcy that dissenters simply would not adopt, the chief justice referred to prior presidents’ orders suspending the entry of certain foreigners, including a proclamation involving Cuban nationals by President Ronald Reagan, for whom Roberts worked in the 1980s.
In fact, Roberts said, Trump’s 12-page order is more detailed that prior presidential orders. Trump had tried and failed twice before with more broadly written orders, including one that came a week into his presidency.
And Roberts noted but swept away a Trump tweet a year ago this month that asserted: “The Justice Department should have stayed with the original Travel Ban, not the watered down politically correct version they submitted to S.C.”
Trump’s history of fighting with judges
Since his days as a candidate, Trump has tangled publicly with judges, as when in May 2016 he derided US District Judge Gonzalo Curiel, hearing a lawsuit against Trump University, for his “Mexican” heritage and claimed he was being “railroaded” in the litigation.
Regarding the travel ban specifically, Trump referred in February 2017 to US District Judge James Robart, of Washington state, as a “so-called judge” and described his order temporarily blocking the travel ban “ridiculous.”
As the ban in various forms headed toward the Supreme Court, lower court judges declared it discriminatory and pointed to Trump’s anti-Muslim rhetoric. The ban, in its third iteration, now targets five Muslim-majority countries, Iran, Libya, Somalia, Syria and Yemen, as well as North Korea and Venezuela.
Supreme Court justices watched as this played out and, overall, kept quiet about how they regarded Trump’s inflammatory remarks, whether on immigration or other aspects of the rule of law and due process. As late as Monday, the President asserted that immigrants at the border are owed no due process and should be summarily deported without any hearing to determine if they deserved asylum or were US citizens wrongly apprehended.
On Tuesday, the justices’ assessments of Trump emerged.
Roberts said that presidents possess “extraordinary power to speak” to the public. Roberts referred to statements by Presidents George Washington and Dwight Eisenhower rejecting religious bigotry, with tacit negative implication to Trump.
Roberts noted that those challenging the travel ban believe Trump’s statements violate the spirit of such tolerance and, ultimately, the Constitution’s protection for religious liberty.
“But the issue before us is not whether to denounce the statements,” Roberts wrote, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch.
“We must consider not only the statements of a particular president,” Roberts said, “but the authority of the presidency itself.”
Kennedy shows his hand
The conservatives are not necessarily of the same mind on Trump, however.
Kennedy wrote a two-page concurring statement that went beyond the travel ban and targeted statements that might not be subject to judicial scrutiny – but that matter.
“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect,” Kennedy wrote, “so that freedom extends outward, and lasts.”
Kennedy may have been looking to future Trump actions as he referred to the oath that presidents take to uphold the Constitution – an oath that Roberts administered to Trump on January 20, 2017.
“The oath is not confined to those spheres in which the judiciary can correct or even comment upon what those officials say or do,” Kennedy wrote.
“Indeed,” he added, “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.”