Defending the rule of law
Gregory, writing for the majority, said that Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination.” Judge James Wynn was even blunter, writing that the president’s proposal amounts to “naked invidious discrimination against Muslims.”
In a sense, Trump is right: We do “need the courts to give us back our rights.” But we don’t need judges to bolster the president’s alarming overreach; we need them to safeguard our traditions of tolerance and diversity.
The president’s lawyers have appealed to the Supreme Court, arguing that the justices should disregard his frequent campaign calls for a “total and complete shutdown” against Muslims entering the country. Trump is now a different person, they wrote, because once a candidate becomes a president, “taking that oath marks a profound transition from private life to the nation’s highest public office.”
That’s clearly wrong. Trump hasn’t made any kind of “profound transition;” he’s the same person with the same prejudices violating the same principles. As a candidate, he attacked a federal judge of Mexican heritage who ruled against him in a civil case, and as president, he assailed a “so-called judge” who first blocked his travel ban.
In his latest tweetstorm, he denounced federal jurists as “slow and political,” another display of ignorance. They are slow because they carefully weigh evidence and arguments. That’s their job. And it’s Trump who wants them to be political, to bend to the pressure he is deliberately trying to generate on social media.
In one tweet, he blamed his own Justice Department for crafting a “watered-down politically correct version” of his first executive order. He favors “a MUCH TOUGHER” ban, he told his Twitter followers. “We cannot rely on the MSM (mainstream media) to get the facts to the people. Spread this message. SHARE NOW.”
To many lawyers, including Republicans, the president has undercut his own case by reinforcing Gregory’s conclusion that his policy “drips with religious intolerance.” Neal Katyal, one lawyer representing challengers to Trump’s travel ban, said, “It’s kinda odd to have the defendant acting as our cocounsel. We don’t need the help but will take it!”
There’s more at stake here than the issue of religious tolerance. The president is certainly correct in saying he has the primary responsibility for regulating immigration, but as Gregory pointed out, “that power is not absolute.”
Again, this is a balancing act. And like other judges who have examined the evidence, Gregory concluded that the travel ban was not essential to safeguarding national security, and therefore any benefit did not outweigh the risk of causing “irreparable harm to individuals across the nation.”
Quoting the English writer Jonathan Swift, Gregory added: “There’s none so blind as they that won’t see.”
This aptly describes the president’s whole approach to the judiciary. He refuses to see the evidence that judges amass against him, or even the legitimacy of their independent role in the legal system. And indirectly, he received a rebuke from Justice Neil Gorsuch, Trump’s own appointment to the Supreme Court. Gorsuch recently lamented “a lot of skepticism about the rule of law,” especially among the “next generation.”
Speaking at a forum celebrating the 70th anniversary of the Marshall Plan, Justice Gorsuch said that what binds the British and American legal systems together is “the rule of law, a sense that judges can safely decide the law according to their conscience without fear of reprisal.”
The president should hear and heed Gorsuch’s words.
Steve and Cokie Roberts can be contacted by email at stevecokie@gmail.com.