The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.
The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.
Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.
Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”
Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.
The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.