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June 27 2017

SCOTUS Strikes a Blow for Objectivity . . .

by Charlotte Hays

Quote of the Day:

For those of us who have long argued that the legal authority supported Trump, the order was belated but not surprising. However, the order does offer a brief respite for some self-examination for both legal commentators, and frankly, the courts. At times the analysis surrounding the immigration order seemed to drop any pretense of objectivity and took on the character of open Trump bashing.

--Jonathan Turley in The Hill

Whatever you think of the Trump administration's travel ban (I guess that's what we're calling it now?), it should have been clear that the legal reasoning (if that wording is not a bridge too far) behind the various lower court injunctions against it boiled down to this: we don't like Trump or his travel ban because we are more elite, decent, and educated than the people who put this man in office.

But courts are supposed to be grounded in the law, ever how unattractive they find the chief executive or actions that are within the right of the president.  The Wall Street Journal summarized the meaning of yesterday's per curiam from the Supreme Court reinstating most of the administration's travel restrictions until the case is heard in October. The editors wrote:

This is a victory for the White House, though it is more important for the Constitution’s separation of powers. President Trump’s ban is neither wise nor necessary, but that is not an invitation for judges to become back-seat Commanders in Chief.

Yet that is precisely what liberal majorities on both the Fourth and Ninth Circuit Courts of Appeal did in blocking the travel bans, and the Supreme Court is saying those rulings will not be the last judicial word. The Court’s unsigned per curiam opinion set the case for an early hearing on the legal merits in the next term that begins in October.

. . .

Some Justices might not agree with that, but it’s notable that Chief Justice John Roberts managed to corral a unanimous Court for lifting nearly all of the injunctions. That means even the liberals understand that injunctions need to be issued with care, especially on national security where judges lack the knowledge and electoral accountability of the executive and Congress.

. . .

Democrats and the media will now begin a ferocious lobbying campaign to turn five Justices against these precedents, in particular the Chief Justice and Justice Anthony Kennedy. We doubt this will succeed because this isn’t a close legal call, and it concerns the Presidency more than this particular President.

Jonathan Turley considers this morning in The Hill how this per curiam will affect our core institutions. Observing that at times President Trump seems to bring out the worst in people, Turley notes that the media has lost all sense of objectivity--and that the courts seemed inclined to follow suit :

The Supreme Court’s decision is consistent with this long-standing precedent. In fairness to the courts and some commentators, there are good-faith reasons to argue against the travel order. Indeed, I predicted at the outset that there would be conflicting decisions in the courts. However, it was the tenor and basis for the decisions that I found disturbing. Courts that once gave President Obama sweeping discretion in the immigration field seemed categorically opposed to considering the same accommodation for President Trump. For commentators, viewers were given a highly distorted view of the existing law — brushing aside decades of cases while supporting the notion that a major federal policy could live or die by the tweet.

The Supreme Court’s stay should cause an examination of more than the lower court decisions. It should concentrate minds in both the courts and the media on the loss of objectivity in analysis over the “immigration ban.” There seemed an inability to separate the policy from the personality in this controversy. That is a serious problem for both institutions. Injunctions come and go. Yet, integrity and objectivity are things that, once lost, are hard to regain.

President Trump does often bring out the worst in people, but this loss of objectivity has been building for a long time.  The per curiam, at least for now, is cause for hope of a return to objectivity.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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