Explain This

With Gorsuch, SCOTUS Is Legitimizing “Alternative Facts”


A stolen seat on the highest bench in the country is paying off for conservatives: three decisions, with more to come, that say it’s legal to lie, cheat, and hate.



By any metric, it’s been a terrible Supreme Court term so far. The majority opinions just this week proclaimed that gerrymandered voting districts that dilute the power of non-white voters are just fine; banning Muslims from traveling to the United States is dandy; and those fake “crisis pregnancy centers” run by anti-choicers can lie to you so that you don’t get the reproductive care you need. The week isn’t even half over.

Earlier in the year, the Court also made hash of the Masterpiece Cakeshop case, thanks to a vague ruling that gives little guidance to the states about whether bigots can refuse to serve LGBTQ people. They trashed the right to employee class actions by ruling that employees can be forced to sign individual arbitration clauses rather than being able to pursue cases in court. They ruled that you can wear political clothes and buttons to your polling place, creating a disruptive and threatening environment for other voters. The list goes on and on.

The common thread among many of these cases? Justice Neil Gorsuch providing a reliable fifth conservative vote. It’s worth a brief reminder of the way Gorsuch got his seat: It was downright disgusting. A lawyer with any honor whatsoever would have turned the seat down.

When Justice Antonin Scalia died in 2016, the Senate was supposed to, at a minimum, hold a confirmation hearing for his successor, Merrick Garland, who was nominated by then–President Barack Obama. Senate Majority Leader Mitch McConnell straight up refused to do so, arguing that the 2016 election, which was nine months away at that point, should control who got Scalia’s seat. His party went along with him, happy to flout their duties to the American people. It was an astonishing example of party over country, and it’s one that has continued throughout the entirety of this Supreme Court year.

The two major decisions issued June 26—arguably the bleakest day of the 2017-2018 term thus far—rely upon the Court fully immersing itself in Trump’s culture of lies and executive overreach.

Let’s start with the Muslim ban case, Trump v. Hawaii. It’s the culmination of nearly 18 months of Trump trying to make good on his promise to combat “radical Islamic terrorism” by preventing the likes of students and teachers, doctors and tech workers, and parents and refugees from Muslim-majority nations to merely step foot on American soil. This litigation was over the third iteration of the ban. The first, issued in January 2017, right after Trump took office, banned immigrants from Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen—generally Muslim-majority countries—for 90 days. The lower courts struck that down, so Trump issued another version in March 2017. The lower courts struck that one down, too. Then there was the September 2017 version of the order, which bars travel to the United States for individuals from Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen.

Although lower courts had struck down that version too, SCOTUS allowed the ban to take effect while it considered the case. Then, of course, it considered the case and upheld the ban. The decision went 5-4 and aligned exactly as you’d expect: Chief Justice Roberts and Justices Thomas, Kennedy, Alito, and Gorsuch found in favor of the ban, while the liberal wing of the Court—Justices Sotomayor, Kagan, Ginsburg, and Breyer—dissented.

At its root, Trump v. Hawaii is about the limits of Trump’s executive power: Is it permissible for him to issue an executive order barring certain people from coming to the United States? And does it matter that he went on record multiple times calling for the ban explicitly in terms of barring Muslims from the United States because they’re uniquely dangerous in some fashion?

Chief Justice John Roberts answered “yes” to the first question, and “no” to the second. Both answers are wrong.

First, Trump simply doesn’t have the power, under the Immigration and Nationality Act, to enact such a sweeping order. That law prohibits the government from refusing to issue a visa to an immigrant on the basis of their nationality. Never mind, says Roberts, breezily shifting to saying that it’s just fine, because our national security interests are at stake. However, as Justice Sotomayor points out in her dissent, it’s never quite clear what that national security interest is. It really can’t be stopping terrorism, because the eight countries included in the ban generally aren’t the ones from which terrorists that target the United States hail. (And if we were really concerned about terrorism within our borders, we’d ban white men with guns.)

Once you knock that flimsy excuse down, it becomes clear what is really at issue here: outright bigotry and hatred of Muslims.

Trump has never tried to hide that bigotry. He ran on a platform of that hatred. But Roberts and company wave that away too, saying that the president’s statements about Muslims and the ban are irrelevant and that we should just ignore the fact that Trump’s motivation in enacting the ban is to harm one particular religious group.

Here, Chief Justice Roberts doesn’t just buy the lies of the Trump administration. He becomes complicit in those lies. He tells Americans that what we have heard from Trump just doesn’t matter. He tells us to ignore the parallels between this bigoted exclusion of a class of people and the horrifying decision in Korematsu v. United States, which held that it was permissible for the United States to imprison Japanese-Americans during World War II. He tells us that the only truth is Trump’s truth.

Lying is also at the heart of the other case decided on Tuesday, National Institute of Family and Life Advocates (NIFLA) v. Becerra. In that case, a group of crisis pregnancy centers (CPCs) sued the state of California over the state’s Reproductive FACT Act, which required all licensed health-care facilities to provide information about public programs for free or low-cost family-planning services, including abortion. CPCs prey upon people seeking reproductive health-care services by pretending that they provide those services, when in actuality they’re generally unlicensed facilities that provide little more than ultrasounds and attempts to coerce people to choose not to have an abortion.

California wanted to also require CPCs to disclose whether they were unlicensed and to tell people where they could get actual reproductive health care, since getting people to the entirely legal reproductive health care they need is a net public good. CPCs hated that, of course, and sued to stop it, arguing that for them to have to tell the truth about what they do was an infringement upon their First Amendment rights because it compelled them to say something they didn’t believe.

The very existence of CPCs thrives on dishonesty. They trade in lies: lies to people about their reproductive health options, lies to people about the services they provide, lies to people about the dangers of abortion. But Justice Kennedy’s concurrence ignores that those are lies and instead calls them “differing moral values and different points of view.” It isn’t a “differing moral value” that many CPCs are not licensed. It isn’t a “different point of view” to pretend that California has no low-cost reproductive health services. Trump’s contentious relationship with the truth has clearly had an influence on Kennedy, who has bought into the false idea of “alternative facts.” But the truth is: these are lies.

These lies are all the more pernicious because the Supreme Court has already made it clear that it is perfectly comfortable forcing reproductive health clinics and providers to hand out “counseling” materials with completely false information such as saying abortions can lead to infertility, depression, and cancer.

In the end, it’s an incredibly bleak future for anyone who isn’t in thrall to Donald Trump and his band of nihilists. For example, remember those kids in cages? 17 states have already filed lawsuits challenging the practice of separating children from their parents and demanding those families be reunited. Sadly, there’s no reason to believe that justice will prevail in the end. Instead, much like the Muslim ban, we may see lower court after lower court agree that the policy is monstrous and the administration is in the wrong, but none of that will matter when it gets to the Supreme Court, where the administration’s most repugnant rules, laws, and, worst of all, lies, will simply be rubber-stamped.

Chief Justice John Roberts might be the one leading the way at the moment, but in the end, Justice Gorsuch will likely prove to be the most loyal foot soldier for Trump. After all, when you’re willing to take a stolen SCOTUS seat, it’s pretty easy to overlook all the lies that helped you get there.

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