The Supreme Court has let parts of President Trump’s travel ban go into effect. Former House Speaker Newt Gingrich, among others, is hailing this as a major victory for the Trump administration, telling Fox News that “it proves that the president in fact was right, despite all the news media attacks.”
Except it doesn’t. The Court hasn’t actually taken a position on the substance of the ban. They’ve merely agreed to hear the case and. In the meantime, though, they are allowing some portions of the ban, as revised by the administration, to go in place.
What this shows is that the Supreme Court is prudent and circumspect about its constitutional role – and it will not interfere with the operation of the executive branch without a clear constitutional justification for doing so.
Even with those caveats, the travel ban that is actually going into effect is far narrower than Trump’s original monstrosity. That order, issued within a week of Trump’s inauguration, prevented green card holders from returning to their homes. The second revised version avoided some of the brutal excesses of his first, but was still a major overreach.
‘Credible claim of a bona fide relationship’
In the Supreme Court’s limited, modified version of the ban, people cannot be kept out of the country if they have “a credible claim of a bona fide relationship with a person or entity in the United States.” Given that it is unlikely that most people traveling from the banned countries would be doing so with absolutely no relationship to anyone or anything in America, this represents a rather large opening for opponents of the ban. And that means more litigation for the Trump administration to keep people from getting on planes.
What’s especially striking about this court order, however, is its unanimity. All nine justices agreed to hear this case, and therefore all nine consented to seeing a scaled-back version of the ban go into place in the meantime. It is unlikely that the ultimate decision to uphold or strike down the ban will also be unanimous. But clearly a number of the justices are willing to take legal action that will have policy implications that they personally oppose.
It also speaks well for the high court as a whole.
It demonstrates a proper understanding of the responsibility of the judicial branch. It is not their role to make policy, but only to ensure that any policy made by the legislature passes constitutional muster.
For well over a generation, the left has seen the courts as an alternative legislature that can interpret any increasingly malleable constitution to reach any policy conclusion they like. A good Supreme Court justice should resist that temptation and be willing to uphold a law they despise as long as it is within the bounds of the Constitution. On the occasion of this travel ban, nine of the justices were willing to do that. That ought to give hope to Americans with tenuous faith in our government.