Dissent from SCOTUS' travel ban decision

In a series of decisions announced in the last days of this court season, the Supreme Court gives the impression of a definite right-ward tilt.   Decisions on voter suppression, redistricting, abortion, and now Trump's travel ban.

As Fortune Magazine's Renae Reints reports:

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"The Supreme Court upheld President Donald Trump's travel ban Tuesday, siding with the president in Trump v. Hawaii.   The 5-4 decision legally allows vast immigration restriction from several majority-Muslim nations:  Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

"While the court's opinion stated the president had 'sufficient national security justification' to order the travel ban, Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a scorching dissent calling attention to Trump's anti-Muslim rhetoric on the campaign road.

"'The United State of America is a Nation built upon the promise of religious liberty,' they wrote.  'Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.   The Court's decision today fails to safeguard that fundamental principle.  It leaves undisturbed a policy first advertised openly and unequivocally as a 'total and complete shutdown of Muslims entering the United States' because  the policy now masquerades behind a facade of national-security concerns.'

"Their quotation refers to a statement Trump made in December 2015.  'Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on,' he said then, at a South Carolina rally.

"In the dissent, Sotomayor and Ginsburg accused the court majority of 'ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.'

"'The full record paints a far more harrowing picture from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith,' they wrote.

"The dissent continued to give Trump's full statement on banning Muslims, which remained on his website until May 2017, several months into his presidency.   From there, Sotomayor and Ginsburg account every moment during Trump's campaign, month by month, where he defended his position on banning Muslims.  After some time, Trump's language surrounding a ban took a turn, focusing instead on 'radical Islamic terrorism.'

"'Asked in July 2016 whether he was pulling back from his pledged Muslim ban, Trump responded, 'I actually don't think it's a rollback.  In fact, you could say it's an expansion,' Sotomayor and Ginsburg account in their dissent.  'He then explained that he used different terminology because 'people were so upset when [he] used the word Muslim.'

"Continuing their account to when Trump signed the travel ban and thereafter, Sotomayor and Ginsburg provide detailed evidence of Trump's personal view on Muslim immigrants and how he incorporated this rhetoric into his political policies, determining that with all the evidence, the travel ban is clearly motivated by anti-Muslim fervor.

"'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,' Sotomayor concludes.  'Because the Court's decision today has failed in that respect, with profound regret, I dissent.'"

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Powerful, persuasive words.   But the conservatives have the votes.   In these last few big decisions, Justice Anthony Kennedy seems to have regained his inner conservative core -- after having provided the much needed fifth vote for most of the major decisions on gay rights and marriage equality.

Let's hope this is not a prelude to an announcement of his retiring.   If Trump gets the opportunity to appoint another justice, we are stuck with a very conservative court for years to come.

Of course, it's really the result of Senate Majority Leader Mitch McConnell's stealing the SCOTUS seat vacated when Justice Antonin Scalia died.   McConnell refused to take up President Obama's nominee Merrick Garland, whose nomination was made in March before Obama left office the following January.   McConnell invented the fiction that that close to a presidential election, "the people should decide" [i.e. by whom they elect as president].

This means that Obama's nominee was completely bypassed and that Trump got to make the nomination.   The irony is that "the people" didn't actually decide, because Trump did not win the popular vote.   He won the presidency because of the electoral college rules, but "the people's decision" really should be the popular vote, it seems to me.    And Hillary Clinton won that.

Beyond even that, though, McConnell's claim is pure politics.    Let him offer that rule change the next time his party has the presidency.

Such debate is really irrelevant in this case.   The people did make a decision.   They elected Barack Obama for a second term, and it did not end until January 2017.   During that time, he was the President of the United States and had all the duties and responsibilities, including nominating Supreme Court Justices.   The seat was stolen.

Ralph