This Day in Liberal Judicial Activism–May 4

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Laurence Tribe outside the Supreme Court in 2000. (Brendan McDermid/Reuters)

2009–On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protege, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

2020–In John Doe #1 v. Trump, a divided panel of the Ninth Circuit (majority opinion by Chief Judge Sidney Thomas, joined by Judge Marsha Berzon) denies the Trump administration’s motion for a stay pending appeal of a district-court order that bars the Trump administration from enforcing a presidential proclamation that imposes restrictions on the entry of immigrants who, in the president’s judgment, will unduly burden the American health-care system. In dissent, Judge Daniel Bress laments the majority’s ruling as “yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy”:

The majority gravely errs in concluding that the Proclamation is likely unconstitutional. There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as “the President[‘s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Trump v. Hawaii (2018). The President issued Proclamation No. 9945 based on his constitutional powers and his statutory authority in 8 U.S.C. ? 1182(f). The Supreme Court has held that this provision “[b]y its terms” “exudes deference to the President in every clause.” Yet the majority opinion gives deference to everyone but the President….

It is a bad day for the separation of powers when the Executive–operating at the apex of his constitutional mandate–loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the majority opinion endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii. As with many immigration policies, reasonable minds will differ as to whether Proclamation No. 9945 is good or bad policy. But the great policy debates of our time should be resolved in the halls of Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Francisco.

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