Bench Memos

Law & the Courts

Greenhouse Emissions Don’t Improve With Time

It’s easy to understand how immediate analyses of Supreme Court opinions might have serious shortcomings. It’s much more difficult to excuse those shortcomings in an analysis offered more than two-and-a-half years after a ruling has been rendered.

In its 5-4 decision in June 2018 in Trump v. Hawaii, the Supreme Court ruled (1) that President Trump had statutory authority to issue a proclamation that placed entry restrictions on the nationals of eight countries: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, and (2) that the proclamation did not violate the Establishment Clause. In her critique yesterday of the decision, Linda Greenhouse says that “it was startling to see how completely dismissive the Trump v. Hawaii majority opinion was of the argument that the Muslim ban [sic] amounted to unconstitutional discrimination on the basis of religion”:

“The text says nothing about religion,” Chief Justice Roberts observed. “The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”

Readers who misplace their trust in Greenhouse would assume that the two sentences of the Chief Justice’s majority opinion that she quotes fairly capture the Chief’s supposedly “completely dismissive” treatment of the Establishment Clause claim. But she excludes quite a bit from the 14 or so pages that the Chief devotes to the issue.

Let’s start with the Chief’s proposition that a very different standard of review applies in this context than for “the conventional Establishment Clause claim”—a proposition that undercuts Greenhouse’s broader charge that the Court’s ruling in the case conflicts with its supposedly “exquisite[] attenti[on]” in other cases “to the slightest hint of discrimination against religion, religious people and religious institutions.” In the Chief’s words:

Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review.

The Chief notes that “[f]or 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.” [Internal quotation omitted.] He concludes that while the Court “may consider plaintiffs’ extrinsic evidence” of improper discrimination, it will uphold the proclamation “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”

It would be one thing to confront the Chief’s arguments about the standard of review and explain why you disagree with them. It’s quite another to simply ignore them, as Greenhouse does.

Greenhouse also conveniently omits the Chief’s two sentences that immediately follow the two sentences she clips:

Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. [Emphasis added.]

The six majority-Muslim countries that were initially covered by the proclamation rank 7th (Iran), 11th (Iraq), 17th (Yemen), 22nd (Syria), 35th (Chad), and 38th (Libya) in the size of their Muslim populations. It’s a very strange “Muslim ban” that would omit so many of the countries with larger Muslim populations and include North Korea and Venezuela.

My point is not at all to excuse the ugly anti-Muslim rhetoric from Donald Trump, first as candidate, then as president. Nor does the Chief excuse that rhetoric. On the contrary, he emphasizes that the person who occupies the presidency “possesses an extraordinary power to speak to his fellow citizens and on their behalf,” acknowledges that presidents have “performed unevenly” in living up to “the principles of religious freedom and tolerance on which this Nation was founded,” and cites, without disagreement, plaintiffs’ complaint that Trump’s “words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” But, as the Chief explains:

[T]he issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

In sum, I don’t see how the Chief’s opinion can fairly be said to be “completely dismissive” of plaintiffs’ Establishment Clause claim.


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