Op-ed: The politician justices

  • By Bob Franken
  • Wednesday, June 28, 2017 9:53am
  • Opinion

There is a silver lining here: It enlightens anyone who believes that all those who comprise the judicial branch of our federal government, particularly the nine justices of the Supreme Court, exist on some pedestal. The myth is that their jurisprudence is somehow removed from the self-promoting deceptions of the riffraff who scurry through the sewers of the executive and legislative branches. It is not — at least, not all of it.

Even the nine at the top of the heap are not elevated above those lowlifes. Their robes are no shield from petty politics. Once again, we are reminded of that with the Trump Travel Ban. At least four of the justices — the number required to accept a case for argument, called granting “certiorari,” or “cert” — have decreed that the travel ban is worth their attention. It will be heard next term, questioning various lower courts that ruled that the ban was unconstitutional, because it was clearly aimed at Muslims, or otherwise illegal. That’s obviously a supremely political decision, not a legal one.

Add to that the lifting of the injunctions imposed by lower courts, which had prevented the bans from taking effect, and it all means that the Trumpsters can immediately unleash their mean-spirited restrictions, which run 90 or 120 days. It’s entirely probable that they will have run their course before their merits are even discussed in the Supreme Court, meaning the case could very possibly be declared moot and eliminated from the docket.

And that’s just another claim about the justices that is being exposed as the myth that it is: These men and women are not all the wise men and women of the law that they claim to be. Not only is their timing muddled, but so is their ruling. The ban, they wrote, does not apply to those who have a “bona fide” relationship with someone in America, or as they put it, the Trump executive order “… may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

What in heaven’s name does that mean? Well, one thing it means is that a lot of attorneys will be charging a mother lode of billable hours as lower courts are asked to decide what a “bona fide relationship” is. Justice Clarence Thomas nailed it (I never thought I’d use those words) when he wrote: “The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid’ the executive order …”

Bingo.

The Supreme Court is supposed to be the “court of last resort” presided over by superhumans who are given lifetime appointments so that they can provide, without fear, final answers to vexing legal questions. Instead, this is still another case where they’ve created no finality whatsoever. They’ve only added to the confusion.

With their shaky reasoning, they’ve handed President Donald Trump a huge victory. His insistence that the bans are necessary to protect America is belied by the fact that violent acts associated with terrorism, in this country and elsewhere worldwide, usually are planned and performed by people who already are residents. Donald Trump and his attorneys can argue that the ban is not aimed at Muslims, but his hateful words before and after he took office make that contention absurd.

That’s what some of the justices chose to ignore. It is also hard to ignore that they were not making a legal or constitutional judgment but a political one. In the process, they have lowered the highest court in the land.

Bob Franken is a longtime broadcast journalist, including 20 years at CNN.

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