Live blog of opinions | June 26, 2018 (with SCOTUS Map and First Mondays)
We live-blogged as the Supreme Court released its opinions in Trump v. Hawaii and National Institute of Family and Life Advocates v. Becerra. Dan Epps and Leah Litman of First Mondays and Victoria Kwan of SCOTUS Map joined us on the live blog.
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Addresses the issue of the president's statements on excluding Muslims from the US. Says "the 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."
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Court says that it will look beyond the face of the Proclmation to consider the plaintiffs' extrinsic evidence about the president's motivations, "but will uphold the policy so long as it can reasaonlby be understood to result from a justification independent of unconstitutional grounds
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Says the proclmation is based on legistimate purposes, without saying anything about religion. Proclamation is result of a "worldwidereview process" by multiple cabinet agencies. Notes taht it doesn't apply to Iraq, "one of the largest predominately Mulsim countries in teh region."
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"under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today tat plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."
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This, from the majority, is notable:Finally, 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. See post, at 26–28. 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).
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Justice Kennedy's concurrence says, essentially, that there are some things that are unconstitutional that the Judiciary is not in a place to correct or address. It's subtext is pretty close to the surface, and seems designed to chastise the Executive while agreeing with the majority that there was not anything the Court could do about it.
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We are going to host an online symposium on this decision. Here's our line-up.John Eastman, Chapman UniversityKristin Waggoner, Alliance Defending FreedomTom Fisher, South Carolina solicitor generalRoberta Kaplan and Joshua Matz, Kaplan & CompanyHarold Koh, Yale LawShoba Wadhia, Penn State LawAmy Howe will also provide analysis of the decision and Mark Walsh will provide a "view" from the courtroom.
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A bunch of questions about whether Korematsu has been formally overruled. I think the answer is yes, but others might disagree. It's certainly not a holding, but it also represents the considered view of at least five Justices. No lower court would be justified in relying on it going forward (if they ever were). And I doubt (with fingers strongly crossed) that it will ever be necessary to a holding to overrule Korematsu because I can't imagine any state actor going there again.
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One thing that will be interesting is how the travel ban litigation moves forward. This is just the preliminary injunction stage. Because the Court has left open consideration of extrinsic evidence, it's at least theoretically possible that further tweeting, etc., will lead to a different result on remand.
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I remain of the view that it is likely that Alito has Janus, and it will go against labor. But the two Justices who would have it if it went the other way have yet to write in February: Kagan, and Ginsburg. That keeps a least a little bit of drama alive for tomorrow.
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Based on today's decision and @Tejinder's point, do we believe that the decision would have differed had the travel ban in question not be changed from the original?
The majority opinion pointed to Iraq's exemption from the the proclamation, so that leads me to believe the original ban would have been struck down. -
Per the travel ban decision, what WOULD constitute extrinsic evidence that the courts could examine? Even if Trump states plainly that his only purpose whatsoever is to discriminate based on religion, his AG could argue that there is some rational national security concern which makes Trump's statement irrelevant.
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My view on the retirement is that he won't put in any announcement until after the midterms and then only depending on how they go. If the Dems take over then he can put in his announcement and then they can play the same game as Repubs and say that a new SCOTUS can be appointed until after the 2020 election.
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Is there likely to be any impact from Thomas’s concurrence in Trump v. Hawaii? He seems to be saying that District Courts shouldn’t have the ability in most cases to issue nationwide injunctions, which would apply to a lot more than this case. Any liklihood the court will look into this issue more?
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Can we expect fist amendment challenges to abortion laws which require doctors to explain alternative options to abortion using the majority's opinion in FILA? Or is SCOTUS making a distinction between the rights of non-medical nonprofits and medically licensed doctors and hospitals?
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At first blush, it seems that Roberts places heavy emphasis on the facial neutrality of the order, worldwide review preceding the order, continuing engagement with the covered countries, large exceptions for nonimmigrant visas, and the waiver program. The facial neutrality and exceptions for nonimmigrant visas are facts that won't change with discovery. But for future proceedings, the plaintiffs would need additional evidence to show that the worldwide review, continuing engagement, and waiver program were shams. In light of his dissent, Breyer probably would just need evidence of a sham waiver program. But I guess the majority needed significantly more evidence to find no rational basis here. (That, of course, assumes that a majority of the Court actually holds that extrinsic evidence may be considered in this type of rational-basis review--an issue Roberts avoided.)
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