Adult supervision: that's what the Supreme Court provided for a federal judiciary, or part thereof, run amok, when it issued its unanimous opinion overturning the preliminary injunctions of President Donald Trump's executive order banning entry of persons from six countries — the so-called travel ban. The court's unsigned per curiam opinion brushes aside, with virtually no comment, the argument of the Fourth Circuit Court of Appeals that the executive order violated the Constitution's bar of an establishment of religion and the assertion of the Ninth Circuit Court of Appeals that its judgment on national security was better than the president's.
The court did provide a glimmer of support to these lower courts by retaining the injunctions against barring the specific plaintiffs in each case and to other "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States," but rather tartly added that "a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion."
There was nothing in the court's unanimous opinion about inferring the president's motivation, as the Fourth Circuit did, by analyzing his statements along the campaign trail. "The Government's interest in enforcing §2(c) [the executive order], and the Executive's authority to do so are undoubtedly at their peak when there is no tie between the foreign national and the United States," it wrote. "To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else." That's a solid rebuke to the preposterous notion that foreign nationals somehow have a constitutional right to enter the United States.
Justice Clarence Thomas, in a separate opinion joined by Justices Samuel Alito and Neil Gorsuch, wrote, "I agree with the Court's implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its ‘compelling need to provide for the Nation's security.'" Thomas noted the likelihood of "litigation of the factual and legal issues that are likely to arise" by foreign nationals claiming pre-existing relationships enabling them to enter the United States, and that such cases "will presumably be directed to the two District Courts whose initial orders in these cases this Court has now — unanimously — found sufficiently questionable to be stayed as to the vast majority of the people potentially affected."
It's interesting, and probably significant, that no other member of the court chose to write separately challenging Justice Thomas's forecast that the lower court decisions will be reversed. The federal district and appeals court judges that have hurled verbal thunderbolts at Donald Trump and his administration have enjoyed the adulation of hundreds of editorial writers and, undoubtedly, the congratulations of the people they encounter in social settings. That may continue. But their actions — the injunctions they issued and the Trump administration obeyed — have been almost entirely overturned by a court whose members are obviously taking their responsibilities seriously. Adult supervision indeed.