The Supreme Court, Morality, and an “Out of the Box” President

Spencer Caron

Chief Opinions Editor


Out of the three branches of government, the judicial branch is the least media-friendly.  The lower courts are collectively known as the place to which busy people hate to be summoned for jury duty.  The appeals process is so complex that even those versed in political science have a hard time making heads or tails of it all.  The Supreme Court has the best chance of making the news, as it annually weighs in on some of the most divisive national issues, but even then, only some issues make for good 30 second media blips.

  The Supreme Court is often times, for better or worse, known as the part of State that can weigh in morally on issues that have stumped congress and inflamed the populace. This view of the court is due in large part to its rectification of legal school segregation in the landmark Brown v. Board decision. When regular old political deliberation cannot bring the nation to a decent compromise, many look to the Supreme Court to yield a ruling.  Perhaps the Supreme Court’s ruling on same-sex marriage is the best, most recent example of this phenomenon.

  However, one ought to be weary of such an interpretation of the Supreme Court’s role. Put plainly, the Court, when acting within its legal boundaries, is the enlightened body of constitutional scholars that decide if a law or measure is constitutionally tenable; few legal scholars would openly admit that the Supreme Court should be in the business of deciding on the moral value of certain laws.  

  With this aside in mind, the Supreme Court has heard arguments regarding President Trump’s restrictive travel measures, colloquially known as the “Muslim travel ban” that was introduced early in President Trump’s tenure.  While articles–books even– have been written about President Trump’s rhetoric surrounding immigration, this article seeks not to deal directly with the details of the travel ban, but more with how the Supreme Court is currently treating the law, in order to comment on the inherent tension that exists when human beings with moral persuasion attempt to deal objectively with issues of political law and order.

  Something I believe all of the Justices and interested citizens can agree on is that President Trump, serving as Commander in Chief, has the broad right to regulate immigration.  I will always entertain a debate with pure libertarians and other politically non-traditional individuals about the merits of arguments stating that no governing body has the right to ban persons; in fact, there are many moral points on which I and the aforementioned individuals agree regarding the movement of persons between nations; but, for the sake of practicality  in 2018 Trumpian America, let us continue by acknolwedging that immigration will certainly be monitored and regulated.

  So, the basic question becomes to what extent the Supreme Court can neuter the travel restriction measure insofar as it violates the United States Constitution; however, another, even more subjective question has been introduced in the Supreme Court argumentation lately.  Namely can blunt, “telling-it-how-it-is” immigration rhetoric for which Trump is famous be considered when delivering an opinion on the matter? It is not hard for one to see just how messy this debate becomes at this point. Can things Trump said, made public by Twitter, something past Presidents would not even have concieved of, be included in the opinion rendering calculus?

  Justice Kagan raised the hypothetical (a controversial, albeit widely used Supreme Court tool) of a vehemently anti-semitic president proposing travel bans. This hypothetical anti-semitic  president makes his prejudices clear, and later, issues an Israeli travel ban. Solicitor General Francisco soberly replied that if Israel was a current national security threat, the Court would be obligated to uphold the order.  This is all well and good, but after all, it’s just a hypothetical, right? Justice Kagan says, “Let’s just say this is an out-of-the-box president” a statement that elicited actual laughter in the usually stoic courtroom. In other words, Justice Kagan begs the question whether Trump’s unorthodox antics force the Supreme Court to more seriously consider exogenous factors when deciding cases?

  At this point, I find myself at a crossroads.  On the one hand, if a president makes explicit the fact they harbor animus towards a certain group of people, than I naturally draw the connection between personal prejudice and presidential action.  This being said, is it not aconstitutional to inject personal opinion and speculation into the process? Yes, I think it is. The more rational, legal part of me is deeply troubled by the harmful potential that such a constitutional approach has, and the Supreme Court has said and continues to say as much.  Legal scholar John Malcolm, vice president of the Institute for Constitutional Government at the conservative Heritage Foundation states that the Supreme Court has a precedent of demanding only a “a facially legitimate, bona fide reason to keep certain people out of our country,” meaning exogenous statements and opinions do not factor into the Court’s decision making process.

Malcolm goes on to say the President Trump rarely uses language that “plays well in a courtroom” but reiterates the Solicitor General’s sentiment that our nation’s constitution has endowed the President, not the judiciary, with the power to protect the border.  Potentially boring legal semantics aside, the issue of moral considerations chafing against codified rules is a problem I am certain every individual can relate to at some level. Take a relatively trifling, though no less real example of one’s superior being inflexible regarding an extension on a paper, project, etc.  The stressed individual may have a watertight argument about why extending the deadline would not be disastrous to the class, would be polite and helpful, and so forth. From a rules standpoint, however, the superior is well within his or her power to enforce the original due date and punish the individual accordingly. This is all to say that the price for entering into an organized society is that, on many occasions, the need to retain order and obey set rules and guidelines yield unfavorable outcomes for particular individuals involved.  

  Of course, an already immensely complicated legal and moral issue is made more complicated by the fact that we are all witnessing an out-of-the-box president indeed.  This makes all the more attractive the approach of allowing the court, just on special occasions, to consider the statements made by the President to strike down the travel ban.  Because we cannot imagine another president being as politically-incorrect (literally) as President Trump, one should not worry about the potentially harmful precedent the action sets.  Even as I try to be as optimistic as possible, I cannot support such an approach. I revere the Supreme Court precisely because they at least pay lip-service to objectivism and respecting precedent.  Has the Supreme Court erred monstrously in the past? Of course, but what institution in America, or the world for that matter, has not? Do we dispense with the idea of dispassionate legal reasoning because of past injustices, or do we cling ever more tightly to the legal process amidst congressional disaster and presidential unprofessionalism?  I think the latter is a safer bet. The Supreme Court has not, and will never consistently get it right. But, I would take an imperfect, yet grounded Supreme Court over one aiming to be a subjective arbiter of morality and intent any day. Keep your eye out this June for what approach this Court takes.


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