CT Blue

I think Josh Marshall has it pretty much right hereabout the Supreme Court’s recent decision allowing Trump’s Muslim ban to remain in effect:

Here’s what I take as the crux of today’s majority decision and one which I suspect may come up again in subsequent decisions given President Trump’s behavior …

For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.5

The point here is that it doesn’t matter if the President says things that suggest he took the action for a bad/unconstitutional reason. What matters is whether the policy can “reasonably be understood” as the product of a legitimate reasoning. The standard doesn’t seem absolute. They say they may consider “extrinsic evidence”, i.e., evidence beyond the narrow facts of the case – what the order says, its direct effects, etc. But the standard they will use is whether the action can be reasonably understood as the product of a legitimate reason – even if there’s evidence in the President’s mouthing off that suggests otherwise.

But there’s a bit more that Josh fails to understand or, alternatively, fully explicate. He points out later that:

I could read these words to mean that the “extrinsic evidence” could be so overwhelming that it made thinking the decision stemmed from anything else than unconstitutional grounds ‘unreasonable’.

I would submit that this decision is one in a line of cases descending from Bush v. Gore. The court is actually saying this:

We reserve the right to strike down the actions of a Democratic President should we wish to do so. In order to preserve a facade of intellectual honesty in our decisions, we inserted the language about “extrinsic evidence”, and although we all know that in reality there will never be such overwhelming extrinsic evidence in the case of a Democratic president as is actually present in this case, if our ideological preferences demand it, we will nevertheless find that evidence.

The Supreme Court is no longer a judicial institution. It is, purely and simply, yet another arm of the Republican Party.