The dissenting opinions written for three recent high-profile Supreme Court cases are excellent examples of how strong disagreement between differing ideologies can be rationally debated at a high intellectual level. These cases – Union dues for non-members, Abortion advertising in California, and the 3rd iteration of a “Travel Ban” – were all hot-button issues. The arguments on each side did not include hyperbole, name calling, or made-up “facts”, just good solid reasoning and coherent expression. While our own opinions on these three cases aligned with the prevailing opinions of the Court, we appreciated the high quality of the dissenting opinions, particularly that of Justice Sotomayor on the travel ban case. Her clarity of expression coupled with her choice of relevant specific points to defend is precisely what is missing from political discourse today. We know all the Supreme Court Justices have clerks that help them do their research and composition, so not every word may have come directly from the pen of the Justice “writing” the opinion. However, that doesn’t change the fact that the Justice still consolidates the legal concepts and signs their name to the finished product. What follows are our summaries of two debate points in the travel ban case that we think exemplify the above.
Was the travel ban intended to prevent potential terrorists from entering the country or was it simply a camouflaged rejection of Muslims? The notion of “intent” in this case was one in which the prevailing and dissenting opinions were both very persuasive. Ironically, this point had little to do with the mechanics of the travel ban itself and instead centered around the “true” motivation of the executive order implementing the ban. Were the actual intentions of the President entirely captured in the written words of the executive order or was there a deceit at work and the words in the order were just cleverly hiding an actual (illegal) intent? The prevailing opinion of the Court (written by Justice Roberts) was that the order could only be evaluated for legality on its “face”. That is, it could only be judged on what the words in it actually state. The dissenting opinion (written by Justice Sotomayor) argued that there was ample evidence in the public sphere from campaign speeches, tweets, press conferences, and media interviews that the true intent of the order was very different from what is stated in its text, namely to disfavor one religion (Muslim) over all others in the immigration process. She therefore posits that the ruling of the court should address the actual intent “behind” the words, rather than the words themselves. There is a certain purity to this opinion when considered in the abstract in that it describes a laudable goal of uncovering the “real” impetus behind a law/order and addressing that reality, rather than playing a game of obfuscation with talented wordsmiths. Also, there is a certain familiarity many of us have with this notion of hiding an idea within a cleverly-worded note to get a difficult or clandestine point across. That familiarity makes Sotomayor’s opinion all the more plausible. On the other hand, Justice Roberts argues that the Court is not composed of psychoanalysts, it is composed of judges. Setting a precedent that allows the Court to reach a conclusion based not on the actual words in an order being challenged, but instead on an intent divined from an analysis of the author’s utterances, tone, and personal feelings, is far too subjective. The Court would be subject to all sorts of imaginative arguments about a person’s psychology and lose any objective measure for decision-making. The majority sided with this point of view, but just barely (5 – 4).
The next well-argued point dealt with the question of the Supreme Court’s authority to question the validity of national security measures taken by the President. This same question also applies to Federal District Court judges who in this case issued injunctions against the travel ban for the entire nation, not just their local jurisdiction or on behalf of their plaintiffs alone. The Constitution and subsequent case law clearly indicate this authority lies with the President and not the courts. On this point however, the dissenting opinion (Sotomayor) suggests that this acknowledged authority of the President is being used illegitimately as cover to carry out blatant religious discrimination (which is within the purview of the Court) and has nothing to do with national security. The prevailing opinion (Roberts) was based on the written words in the order being challenged, which do lay out the nature and details of the national security problem being addressed. Again, the dissenting judges place greater emphasis on words spoken by the President during his campaign, rally speeches, and television interviews than they do on the actual executive order that is before them to be judged. While the prevailing opinion did not preclude the possibility of religious discrimination by improper enforcement of the order, the Justices in the majority saw no evidence the order was being abused during the short time it was in effect while the Court was considering the case.
This case is a superb example of how a well-reasoned and well-thought-out opposing position can positively influence an outcome. The essence of the dissenting views on both points above were argued multiple times in various courts going all the way back to the original “travel ban” order in early 2017. Those arguments forced two extensive re-writes of the original order making it more specific, defendable and enforceable. While these challenges did not ultimately prevail as a matter of law, they clearly had a beneficial impact on the final version of the order that did pass judicial review. Justice Sotomayor’s well-articulated dissenting opinion in this case codified all those previous arguments and showed how a highly-evolved presentation of an opposing point of view can be effectively delivered on a controversial topic even in the current highly-charged political climate. This display of measured argument is welcome and thought-provoking, especially when contrasted with today’s typical ideologues, who just blast away with headline-grabbing vitriol.