In a previous post, I flagged a Slate piece by Josh Geltzer and a letter to the Supreme Court from the Macarthur Justice Center that gave some reasons to be skeptical of the Solicitor General’s claim that the president made “crystal clear” that he had no intention of imposing a Muslim ban.
Some of the reasons to the skeptical of the SG’s claim include statements thatthe President made after his purported disavowal, as well as statements that he (and other members of his administration) made after the Supreme Court argument itself. Those statements (or non-statements) include:
(I’m not listing all of the pre-argument statements, like the President’s claim that the current order is a “watered down, P.C.” version of … something….)
The post-argument statements are especially interesting, because they raise the possibility that the President or his administration would make post-decision statements about the entry ban. Specifically (and this is something other commentators and I have discussed in our posts): What if the President announces after a decision in his favor “S.C. VINDICATES WHAT I’VE BEEN SAYING SINCE THE CAMPAIGN” or “WE TOOK THE BAN ALL THE WAY TO THE S.C. AND WON” or “S.C. LETS US HAVE THE P.C. VERSION, BUT DON’T WORRY I’LL KEEP GOING.” Or what if he says “MUSLIM BAN WIN AT THE S.C.”?
Given the President’s Twitter feed, none of these things are that implausible. And the possibility that they would occur puts the Supreme Court in a predicament if it upholds the order: What if the Court were to uphold the order and the President later exclaims that the administration pulled another fast one at the Court in the name of national security? What if the President confirms in no uncertain terms that the order is infected by anti-Muslim animus? What if the Court says “we can’t determine if the order has a good faith basis” while the President makes clear that it does not? Or if the Court says “the order is not infected by anti-Muslim animus” but the President later says that it is?
Several commentators on this blog (including Ian Samuel and me) have written about the legacy of Korematsu v. United States and its relevance to the entry ban—in that case, the Court signed off on an order whose naked racism was perfectly clear to anyone willing to see and acknowledge the world around them. There are, however, some differences between the two cases, including that in the entry ban case, the President may underscore the Court’s complicity in an animus-laden policy soon after a decision upholding it, even though it took some time for people to understand Korematsu in that light.