I enjoy reading Supreme Court cases, if for no other reason (although there are plenty of good reasons) than the general high quality of the legal writing and analysis. And also because I’m kind of geeky that way. So I’ll periodically share some observations on Supreme Court cases, even if they are outside my everyday field of practice.

In the recently decided case with regarding the travel ban, the Court upheld the President’s executive order banning travel from several countries, which was widely panned as a Muslim ban because of comments that were made on the campaign trail.

The decision was a close one, 5-4.

The Plaintiffs in the case made several arguments on statutory grounds, as well as a claim that the order violated the Establishment Clause of the First Amendment, which prohibits government from establishing a religion.

The majority seemed to adhere to the view that the executive branch has very broad authority with respect to national security and immigration matters, and likened the order to President Carter’s restrictions against travel from Iran during the hostage crisis or President Reagan’s restrictions against Cuban travel during the 1980’s.

The majority reasoned that, as long as the order was facially neutral, did not mention religion, and was rationally related to a legitimate governmental objective, they would not delve too deeply into the charged comments made on the campaign trail.

The majority noted that the government’s stated objective of encouraging certain countries to tighten up their security procedures and more strictly vetting those who enter our country were valid objectives.

The majority noted that there were exceptions to the ban on a case-by-case basis, and that certain countries had been removed from the list after they had made changes to their security protocols.

Justice Kennedy (who is retiring) wrote a brief concurring opinion in which he appeared to gently chide the President stating that, even in situations in which a government official’s actions are not easily subject to judicial review, such officials should remember the oath they took to the uphold the Constitution. As always Justice Kennedy’s opinion was couched in the most polite and civil terms possible, a style that will be missed in this time of increasing polarization.

Justice Thomas, in a concurring opinion, stated his concern about the increasing popularity of federal courts issuing universal injunctions. He noted that the history of equitable relief in our legal tradition can be traced to the English Court of Chancery. Equitable relief was designed to avoid the harsh consequences of a rigorous application of the common law where the law did not afford adequate relief.

Justice Thomas noted that equity developed loose rules of its own, which were expected to be adhered to and was not just a completely fuzzy concept of what was fair. He opined that the Founders were suspicious of equity and sought to constrain it within the boundaries that existed in the English Court of Chancery.

He indicated that universal injunctions were first introduced in the 1960’s but even then remained relatively dormant until recently, when they have exploded in popularity.

His biggest concern related to courts being limited to deciding cases and controversies, rather than venturing into the arena of making policy, which in his view is the domain of the political branches of government.

Justice Thomas’s concurrence demonstrates his unwavering commitment to an originalist approach to interpreting the Constitution.

Justice Breyer wrote a dissent in which he expressed his belief that, on balance, it appeared to him that the order was motivated by improper motives and should be set aside.

The primary dissent was written by Justice Sotomayor. She did not pull any punches in outlining the disturbing history leading up to the enactment of the travel ban. She opined that a reasonable observer, based on this history, would understand the order to have been motivated by improper religious animus.

Justice Sotomayor noted that, although the order provided for consular officers to make exceptions to the ban in a number of circumstances on an individualized basis, in actual practice, this discretion was seldom exercised, thus calling into question whether it was a true discretionary power.

She questioned the government’s proferred rationale for the travel ban, noting that the existing finely reticulated statutory scheme already addressed all of the concerns encompassed in the rationale. She felt the reasons offered by the government for the travel ban were pretextual, or mere “window dressing.”

Tellingly, Justice Sotomayor drew attention to the recent history of the Supreme Court’s decision holding in favor of a Christian baker who refused to create a wedding cake for a same sex wedding celebration. In that case, the Court had looked behind Colorado’s facially neutral anti-discrimination law to the overtly hostile statements made by state officials against the baker’s Christian religion. The Court had found that the state did not act in a religiously neutral manner, as evidenced by these hostile statements. She felt that in the instant case, there was even stronger evidence of hostility towards a particular religion. In particular, the anti-religious sentiments that were made on the campaign trail were extensive and never repudiated..

Justice Sotomayor questioned the Court’s application of a very deferential standard of review; namely, rational basis review. She acknowledged that the executive branch is the primary policy making body with respect to national security and foreign policy issues. But where, as here, there was clear evidence of improper religious animus, she felt a heightened standard of review was appropriate to vindicate the principles underlying the Establishment Clause.

She noted that, even under rational basis review, in her opinion the order did not pass constitutional muster. She felt this was a discriminatory policy motivated by animosity towards a disfavored group with only a superficial claim of national security to back it up. In her view, the case was not materially different from the infamous World War II case of Korematsu v. United States, in which the Court upheld President Roosevelt’s internment of Americans of Japanese descent, a decision that is almost universally recognized as a dark episode in our nation’s history.

Along those lines, and to end this post on a positive note, the Court did explicitly overrule the Korematsu case, stating unequivocally that it had been long since overturned in the court of history and that it has no place in our constitutional jurisprudence. So there is that silver lining.

See Trump v. Hawaii, 585 U.S. ____ (2018).