Republican appointees dominate the Supreme Court. Donald Trump had more appeals court judges confirmed in his first year in office than any previous president. And he will go on filling judicial vacancies with the help of the GOP-controlled Senate. If it was not obvious before this week, it should be now: Liberals should not expect the courts to save them.
Any lingering hope evaporated when the justices upheld the administration’s travel ban — which critics regarded as a naked effort to keep Muslims out of the country. Where did they get that idea? From Trump, who promised a total shutdown on Muslim visitors during the campaign and has often expressed aversion to them.
His raw hostility invited a challenge on the theory that the policy violates the First Amendment by targeting a religious group for exclusion. But the court decided by a 5-4 vote that the ban fell within his rightful powers.
A torrent of outrage issued from advocacy groups and Democratic officeholders, who flayed the court for an “abhorrent” decision that “gives legitimacy to discrimination and Islamophobia” and ranks with “the worst and [most] outrageous Supreme Court decisions in U.S. history.”
Was the ruling wrong? I would say so. But outrageous? No. Trump’s rantings on the topic have been ignorant and bigoted. The policy itself, though, rested on outwardly impartial criteria with a credible basis in tangible concerns about public safety.
Just because Trump claims the North Korean threat has been eliminated doesn’t mean it has. Just because he wants his followers to think this policy punishes Muslims doesn’t mean it does.
It is not implausible to say the ban is consistent with the constitutional powers of the president — and with the authority granted him by Congress in the Immigration and Nationality Act. Keep in mind that the administration revised its original ban in an attempt to conform to the law and the Constitution. The justices concluded it succeeded.
The ruling may be disappointing, because it preserves a policy that is tainted in its origin and dubious in its value. But its judicial validation is not the end of the story.
“For more than a century,” wrote Chief Justice John Roberts, “this court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.’ ”
That’s right: political departments. When judges decline to find a constitutional violation, they leave the issue to the democratically elected branches of government. If the travel ban is oppressive, the public has ways to change it.
One way is to vote the culprits out. This ruling will energize Muslims, civil-libertarians and other voters who favor more tolerant rules on foreign visitors. Come November, the electorate can give control of Congress to a party that is stoutly opposed to the president on this and most other issues.
The travel policy came about because the electorate installed a president who promised it. It can be undone if the electorate replaces him with someone who vows to scrap it.
Another method for correcting mistaken or malicious policies is sheer public pressure. We know this can work, even under Trump, because it just did, with a different group of foreigners that he often reviles: Latin Americans.
Mass condemnation of his policy of separating parents and children who came over the southern border without permission forced the president — who had insisted he had no power to abandon it — to abandon it. It also forced the Justice Department to end its “zero-tolerance” policy of prosecuting all adults who enter the country illegally.
It’s tempting to wish the courts would intervene to correct every mistake made by Congress and the president. But that would leave no room for citizens to govern themselves. Sometimes, the Constitution imposes an obligation on judges to intervene to protect fundamental liberties. More often, it doesn’t.
Overly activist judges damage democracy by depriving the people of power. They also weaken it by encouraging elected officials to behave irresponsibly and count on the courts to clean up after them. When judges hold fire, they may accommodate the worst impulses of elected officials — but they also empower the public and stimulate it to act.
That the results are often disagreeable is no reason to fear rule by the people. “I’m tired of hearing it said that democracy doesn’t work,” complained the 20th-century writer Alexander Woollcott. “Of course it doesn’t work. We are supposed to work it.”
Steve Chapman blogs at http://www.chicagotribune.com/news/opinion/chapman.