The justices don’t say this directly, of course. But their scorn for the president and their alarm about his behavior emerges clearly from their language.
First, consider the chief justice’s majority opinion in Trump v. Hawaii , in which he took an unnecessary historical detour. “The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded,” Roberts observed.
His examples were both familiar and sobering: George Washington, in 1790, reassuring the Hebrew Congregation of Newport, R.I., that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance.” Dwight D.Eisenhower, at the opening of the Islamic Center of Washington in 1957, pledging to a Muslim audience that “America would fight with her whole strength for your right to have here your own church.” And, of course, George W. Bush, days after the Sept. 11 attacks, returning to “the same Islamic Center to implore his fellow Americans — Muslims and non-Muslims alike — to remember during their time of grief that ‘the face of terror is not the true faith of Islam,’ and that America is ‘a great country because we share the same values of respect and dignity and human worth.’ ”
Past presidents, Roberts advised “have — from the Nation’s earliest days — performed unevenly in living up to those inspiring words.” Those challenging the travel ban, pointing to the litany of statements from candidate and then president Trump that evinced clear hostility to Muslims, “argue that this president’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts said. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular president, but also the authority of the presidency itself.”
This is an important point with implications beyond the court itself — even if you disagree, as I do, with the majority’s conclusion. The precedents we set in the age of Trump will outlast his tenure; we should be careful not to let our concern, our fury, our revulsion skew our judgment and drag us into behavior or conclusions we will come to regret. This is, in a different context, part of the raging debate over how far to depart from ordinary standards of civility when it comes to Trump administration appointees such as press secretary Sarah Huckabee Sanders. Is the situation so extreme as to warrant barring her and others from public dining spaces? If so, where does this all stop?
Kennedy’s anguish over Trump was, if anything, even more evident than Roberts’s. He wrote an odd, four-paragraph concurring opinion that reads like something between a guilt-ridden defense against being blamed for the consequences of Trump’s actions and a personal plea to the president to pay some attention to the Constitution he swore to preserve, protect and defend.
“The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the judiciary can correct or even comment upon what those officials say or do,” Kennedy wrote. “Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”
Such as, for example, freedom of religion. “It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs,” Kennedy added. “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Of course Kennedy — yes, the same justice so willing to seize on the words of Colorado officials to find religious animus in the case of a baker who balked at creating a cake to celebrate a same-sex wedding — could easily have intervened to police Trump’s far more offensive statements. He could, in other words, have calmed that anxious world. But the fact remains, and even these justices know: The world is anxious, and Trump is why.