Another Landmark Set

A landmark is a recognizable natural or artificial feature used for navigation – a big rock – a lighthouse – something that can tell you where you are – something that can tell you if you’re going to get where you’re going. Landmark Supreme Court decisions establish a significant new legal principle or concept, or substantially change the interpretation of existing law. They’re the same sort of thing – something that can tell you where you are – something that can tell you if you’re going to get where you’re going. Landmark decisions tell the nation that.

There are lots of those:

Dred Scott v. Sandford, 60 U.S. 393 (1857) – People of African descent that are slaves or were slaves and subsequently freed, along with their descendants, cannot be United States citizens. Consequently, they cannot sue in federal court. Additionally, slavery cannot be prohibited in U.S. territories before they are admitted to the Union as doing so would violate the Due Process Clause of the Fifth Amendment. After the Civil War, this decision was voided by the Thirteenth and Fourteenth Amendments to the Constitution…

Plessy v. Ferguson, 163 U.S. 537 (1896) – Segregated facilities for blacks and whites are constitutional under the doctrine of separate but equal, which holds for close to 60 years (overruled by Brown v. Board of Education (1954)…

Korematsu v. United States, 323 U.S. 214 (1944) – President Franklin D. Roosevelt’s Executive Order 9066 is constitutional; therefore, American citizens of Japanese descent can be interned and deprived of their basic constitutional rights. This case featured the first application of strict scrutiny to racial discrimination by the government…

Gideon v. Wainwright, 372 U.S. 335 (1963) – All defendants have the right to an attorney and must be provided one by the state if they are unable to afford legal counsel…

Griswold v. Connecticut, 381 U.S. 479 (1965) – A Connecticut law that criminalizes the use of contraception by married couples is unconstitutional because all Americans have a constitutionally protected right to privacy…

Loving v. Virginia, 388 U.S. 1 (1967) – Laws that prohibit interracial marriage (anti-miscegenation laws) are unconstitutional…

Katz v. United States, 389 U.S. 347 (1967) – The Fourth Amendment’s ban on unreasonable searches and seizures applies to all places where an individual has a “reasonable expectation of privacy.”…

Afroyim v. Rusk, 387 U.S. 253 (1967) – The right of citizenship is protected by the Citizenship Clause of the Fourteenth Amendment. Congress has no power under the Constitution to revoke a person’s United States citizenship unless he or she voluntarily relinquishes it…

Roe v. Wade, 410 U.S. 113 (1973) – Laws that restrict a woman’s ability to have an abortion prior to viability are unconstitutional. Most restrictions during the first trimester are prohibited, and only health-related restrictions are permitted during the second trimester…

The Supreme Court sets landmarks. Some shift. Katz clarified Griswold – there is a reasonable expectation of privacy – and that led to the Roe decision, which was about that expectation. Eventually, no one wanted to go where Dred Scott and Plessy were going, but someone has to set some landmarks and that started with this:

Marbury v. Madison, 5 U.S. 137 (1803) – Section 13 of the Judiciary Act of 1789 is unconstitutional because it attempts to expand the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that contradict the Constitution. This case featured the first example of judicial nullification of a federal law and was the point at which the Supreme Court adopted a monitoring role over government actions.

That’s the deal. The Supreme Court monitors government actions. No one argues about that now. Some things can be done. Some can’t. The Supreme Court decides that. A later Supreme Court may reverse a decision here and there, but someone has to establish where we are, at least at the moment. Otherwise we’d be lost. The Supreme Court provides landmarks.

The Supreme Court just did that again:

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. finding that a string of unprecedented comments and warnings from Trump about Muslims did not erode the president’s vast powers to control entry into this country.

In short, he may be a bigoted asshole, and he may have wanted to ban all Muslims the whole time, but he has this power, technically. That’s what Roberts wrote, but not that colorfully, in the majority opinion – and Trump gloated – and he wasn’t the only one:

The ruling was one of a string of 5-to-4 decisions this term in which the justices on the right reasserted themselves, after the addition of Trump-nominated Justice Neil M. Gorsuch last year restored a conservative majority.

The campaign of Senate Majority Leader Mitch McConnell (R-Ky.), who for 10 months kept the Republican-controlled Senate from voting on President Barack Obama’s nominee to the court after the death of Justice Antonin Scalia in 2016, celebrated by posting a picture on Twitter.

It was of him shaking hands with Gorsuch.

The Republican-controlled Senate had cheated Obama and cheated the Democrats. They’d been clever. Obama only had a year to go. He’d be gone soon. What’s one year anyway? Why not wait and see who the next president is? Let the next president decide. It would been impossible for them to have said the same thing if Scalia had died on Obama’s first day in office – there’ll be another president one day soon – but at the start of his seventh year in office that was possible. It was nasty, and no one had ever done that before, but that was possible, so that’s what they did.

They won that one, but that’s the politics, not the landmark:

The current ban, issued last fall, barred various travelers from eight countries, six of them with Muslim majorities. They are Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Restrictions on North Korea and Venezuela were not part of the challenge. Chad was later removed from the list.

Roberts tried to play down the political aspects of the case, writing that the proclamation that led to the ban “is squarely within the scope of Presidential authority” and noting that its text does not mention religion. His opinion gave a short history of Trump’s comments about Muslims, starting with a campaign pledge for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” The pledge remained on the campaign website after Trump became president.

And other tweets and statements followed.

“But the issue before us is not whether to denounce the statements,” Roberts wrote. “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.”

He added: “We express no view on the soundness of the policy.”

Okay. He had been a bigoted asshole who wanted to ban all Muslims the whole time – not a sound policy at all – but that wasn’t the court’s problem. The court shrugged. He could do this. Let it go.

Others didn’t shrug:

Justice Sonia Sotomayor wrote a stinging rebuttal, joined by Justice Ruth Bader Ginsburg. And she read part of it in a dramatic moment on the bench.

Sotomayor noted the campaign statements and anti-Muslim videos and comments the president shared on Twitter, including one titled “Muslim Destroys a Statue of Virgin Mary!”

“Take a brief moment and let the gravity of those statements sink in,” she said.

“And then remember,” Sotomayor added, that the statements and tweets were spoken or written “by the current president of the United States.”

She was on fire:

Sotomayor repeatedly called out Trump by name in her lengthy statement and said the majority’s decision “repeats tragic mistakes of the past” and “tells members of minority religions” in the United States that “they are outsiders.”

The court, she wrote, was “blindly accepting the Government’s misguided invitation to sanction a discriminatory policy.”

And then she warned about landmarks:

In her passionate dissent, Sotomayor compared the decision to Korematsu v. United States, in which the Supreme Court in 1944 upheld the detention of Japanese Americans during World War II. Both rulings, she said, will be considered historic mistakes.

Roberts objected. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” he wrote, adding that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”

Maybe it is and maybe it isn’t, but this was about presidential authority:

Even the Supreme Court dissents did not make much of a claim that Trump lacked the statutory authority to bar the entry of those the administration had reason to believe could harm the country.

And Roberts rejected the notion that the court was prohibited from examining the reasoning for the president’s actions on immigration matters.

But Sotomayor said the majority failed by not finding that the policy was inspired by “animosity toward a disfavored group.”

“Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments,” she wrote. “Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

She was referring to Marbury v. Madison, 5 U.S. 137 (1803) to embarrass Roberts, who was in a quandary:

Roberts seemed careful not to tie the court to Trump’s remarks.

“The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf,” he wrote, and was almost wistful in remembering presidents – he named George Washington, Dwight D. Eisenhower and George W. Bush – who “used that power to espouse the principles of religious freedom and tolerance.”

But he decided that was irrelevant. This landmark was in place – something that can tell you where you are – something that can tell you if you’re going to get where you’re going.

David Nakamura reports on where this may be going:

Critics expressed fears that the court’s ruling would embolden Trump to further test the limits of his statutory authority to enforce border-control laws without explicit approval from lawmakers. Aides have promised new measures ahead of the midterm elections in November, and Trump ruminated this week about the power to turn away unauthorized immigrants without offering them due-process rights.

“Who’s going to be next?” asked Sen. Mazie Hirono (D-Hawaii), whose state brought the case against the travel ban. “Is the president going to issue an executive order against Mexicans? Is he going to issue an executive order against people from Honduras? Guatemala? What’s next?”

That is a worry:

In his bid to curb immigration, Trump has routinely used inflammatory rhetoric to fan false claims, refuted by statistical evidence to the contrary, that immigrants commit higher rates of crimes than native-born Americans.

In recent months, frustrated by a lack of progress on his proposed border wall, Trump has called immigrants “vermin” that are overrunning the country, although arrests of unauthorized border-crossers remain historically low. He has also accused Democrats of supporting “open borders” and of facilitating the brutality of MS-13, a transnational gang with many members born in the United States.

Last week, after reversing himself on the family-separation policy, Trump appeared at the White House with families whose relatives have been killed by immigrants living in the country illegally.

Immigrant rights advocates said the travel-ban ruling is bound to fortify Trump’s conviction to accelerate the administration’s efforts to choke off legal avenues for refugees, foreign students and temporary workers, all of whom have been confronted with new hurdles for entry.

The worry here is that the Supreme Court has just “freed” Trump:

“If you can issue an outright ban, there’s no end to what you can accomplish,” said Leon Fresco, an immigration attorney who served as an aide to Senate Minority Leader Charles E. Schumer (D-N.Y.) during the unsuccessful effort to pass a comprehensive immigration bill in 2013 and 2014. “You can turn it on any country at any time for any reason.”

Fresco said Trump’s immigration strategy over 18 months had produced “a dramatic turnaround in what it means to come to the U.S. both legally and illegally. Everything is longer, more difficult and much more stressful for every person interacting with the immigration system.”

And there’s this:

Opponents vowed to continue to fight Trump in the courts. Omar Jadwat, an immigrant advocate at the American Civil Liberties Union, emphasized that nothing in the travel-ban ruling validated other immigration measures that are in litigation. That includes a legal injunction that has prevented Trump from unilaterally ending the Obama-era deferred-action program, a case that could reach the Supreme Court in the fall.

“The court got it wrong here, but that does not mean the court should or will get it wrong in other contexts,” Jadwat said.

He may be wrong about that, and there are other implications:

Now the court has upheld the policy, a decision that added permanence to the sentiment among many American Muslims that the government views and treats them differently from other Americans.

“It has put me in the position of second-class citizenship,” said Abrar Omeish, a Libyan American in Virginia who recently ran for a spot on the school board in Fairfax County.

Civil rights and religious advocacy groups across the country reacted to the court’s decision Tuesday in a passionate uproar. They called it “hateful,” “a historic betrayal of values,” “a blank check to discriminate,” a ruling that “will go down in history as one of the Supreme Court’s great failures.”

The Supreme Court “has given a green light to religious discrimination and animus,” warned Farhana Khera, executive director of the group Muslim Advocates.

The human rights watchdog Amnesty International declared: “This hateful policy is a catastrophe all around.”

And there are other implications:

The Supreme Court’s 5-to-4 decision to uphold President Trump’s travel ban Tuesday shed critical light on an increasingly important question to civil society: What is the legal value of a presidential tweet?

Trump’s tweets on the travel ban played a key role in the case as opponents sought to cast the White House policy as anti-Muslim. Along with other statements Trump had made on the matter, the tweets revealed the administration’s disregard for an unconstitutional violation of religious freedom, critics of the travel ban said.

Whether a president’s tweets carry meaningful force in the eyes of the law is a significant issue, not least because Trump remains embroiled in separate litigation over whether he violated the Constitution by blocking his followers on Twitter. But as officials move more of their communications online, the demands on the judiciary to interpret those statements for public policy will increase.

That’s no small matter. When is the president just venting? When is the president just teasing? When is the president just fooling around? When is any of it actual policy? When is any of it not? When should the president be taken seriously? When should no American or foreign leader take him seriously? When should everyone take him seriously? No one knows. In this mysterious legal and diplomatic journey a landmark or two might be useful. The court may have to provide those. The court may find that impossible.

Ian Millhiser thinks he knows why:

Chief Justice John Roberts is either a very stupid man, or he believes that the rest of us are very stupid.

In the first paragraph of Roberts’ opinion in Trump v. Hawaii, handed down on Tuesday, the Chief writes one of the most literally unbelievable lines to appear in a Supreme Court opinion: “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.”

If you believe that, you probably also believed President Donald Trump when he claimed that he’d replace Obamacare with “something terrific.” If you believe that, you probably slept through the entire 2016 presidential campaign.

In short, take Trump’s tweets seriously, and forget relying on the courts:

In progressive legal circles, it’s very common to hear lawyers saying thankful prayers that the courts are still there to protect our civil liberties from Trump. The head of one leading liberal lawyers’ group even published an essay labeling the judiciary “The Last Hope of the Left.”

If that’s true, then “the Left” better find another source of hope fast. The upshot of Trump v. Hawaii is that the Supreme Court of the United States will turn a blind eye even to Trump’s most obvious abuses. And the Supreme Court sits at the apex of the judiciary, with the power to reverse all other federal courts.

Josh Marshall echoes that:

Today’s High Court decision upholding the President’s anti-Muslim travel ban should focus us on a key, important fact: the federal judiciary is now heavily stocked not just with Republican appointees but conservative ideologues. This isn’t simply a commentary on this decision. It does include major exceptions – the Court’s jurisprudence on marriage, for instance. But we simply cannot rely on the Court’s as presently constituted to make rulings which are in line with the actual constitution or our national traditions. This is in significant part because of the corrupt appointment of Justice Gorsuch. But there’s no undoing that.

There was Marbury v. Madison. The Supreme Court monitors government actions. Some things can be done and some can’t. Those days may be over. Turn elsewhere:

We are on the cusp of what will likely be an even more dramatic example of rightwing judicial activism against labor rights. On issue after issue, change and justice or simple preservation will have to rely on building robust political movements.

So do that and let the courts catch up later:

I spoke to a friend a few days ago who said flatly, the courts are a lost cause. It’s all about politics and elections. That’s wrong. It’s not a pure either-or. Courts and litigation remain still absolutely critical. We’ve seen that even in the last year – critically important. But on many issues, in this period of testing, saving the country will come from robust political movements, ones which will have to succeed in the face of daunting challenges to the right to vote in order to eventually redeem those rights.

The courts may catch up later. They caught up and abandoned the Dred Scott and Plessy landmarks. A landmark is used for navigation, but landmarks can shift. It all depends on where you think you ought to be going. That’s open to discussion now.