The new Supreme Court term hasn’t even begun, but that hasn’t stopped the Court’s newly minted conservative majority from wreaking havoc on the country. In two actions this week, the justices toed a far-right line by thumbing their noses at refugees and telling voters in Texas that they can be divvied up based on race. This is, in shining clarity, your new Trump Supreme Court.
On refugees, the Supreme Court acted in the ongoing litigation about President Trump’s travel ban. Like the Trump presidency itself, controversy over the ban seems like it’s been with us for years, if not decades – but in reality it’s just seven months old. Initially, lower courts found Trump’s ban unconstitutional. In June, when his administration appealed those decisions to the Supreme Court, the justices put the lower court decisions on hold, effectively allowing the travel ban to take effect.
However, the justices said the travel ban couldn’t stop those with a “bona fide relationship” to American people or entities from entering. There are two categories of people this could affect: immigrants with family members in the United States and refugees who already have a relationship with an organization that assists refugees once in the U.S.
Unfortunately, the Supreme Court order didn’t clarify, so the order spurred a new round of court battles. Lawyers for immigrants and refugees argued that close family members should include not just parents, siblings and children, but also grandparents and other family members. They also argued that being assisted by a refugee organization qualifies as a “bona fide relationship.” Unsurprisingly, the Trump administration opposed both of these arguments.
The lower courts sided with the immigrants and refugees, finding that the Supreme Court’s order should be read broadly. Late Tuesday night, the Court issued a new order putting the lower court’s decision with respect to refugees on hold. (It didn’t touch the ruling with respect to family members.)
The result? The president’s travel ban will now bar from entering the U.S. nearly 24,000 refugees fleeing the countries covered by the ban. The Court’s order said that it applies “pending further order of the Court” but did not say when that would be. Most likely, it will be after the Court hears full argument about the case on October 10th, once its new term officially starts. It could act sooner, but that’s unlikely.
The second case involves the other major hot-button issue the Court will face this term: gerrymandering. In Texas, a lower court had ordered the state to quickly redraw its congressional and state legislative maps because they were, according to the lower court, drawn with racial bias as an underlying motive. The state appealed to the Supreme Court, and shortly after the Court put the travel ban case on hold, it did the same with the Texas case. This order noted the dissents of the Court’s four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – though they did not write anything explaining their positions. The result is that Texas can continue with its racially segregated districts without redrawing them anytime soon.
Ordinarily, the Supreme Court does not put lower court decisions on hold when it considers a case. That’s why Court rules require votes from five justices to do this, as opposed to four justices simply to hear a case (without putting the lower court decision on hold). In other words, this week’s actions were extraordinary for the Court.
What makes them even more so is that these orders so clearly toe extreme conservative ideological lines. This is just a small preview of what we should expect from the Supreme Court this coming term, as it will be the first in two years to have a full complement of nine justices, and will restore the Court’s five-justice conservative majority that disappeared when Antonin Scalia died.
This is not what the people of the United States voted for in 2016, when they chose a president in the face of an open Supreme Court seat. The people of the United States voted for Hillary Clinton by almost three million votes. However, because of the antiquated and racially tinged Electoral College, Trump won the election thanks to 80,000 people in Pennsylvania, Michigan and Wisconsin. Because of that razor-thin win in just three states, we have Justice Neil Gorsuch. And because of Justice Gorsuch, we have a Supreme Court that is poised to graft its ultra-conservative ideology onto the lives of people everywhere, possibly for years to come.
This week’s actions were just the start.