A Failure of Judicial Independence
On Tuesday, as Chief Justice John Roberts read an oral summary of his opinion in Trump v. Hawaii, President Trump’s Solicitor General, Noel Francisco, sat a few feet away at counsel table.
Observers could not see Francisco’s lips move, but Roberts’s majority opinion—upholding the administration’s “travel ban” against entrants from a number of countries, most of them majority Muslim—adopted almost verbatim the arguments Francisco had made to the Court during oral argument in April.
Roberts was joined by the Court’s other four conservatives: Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. At the time of argument, an observer, no matter the view of the case, could easily have felt compassion for conservative judges seeking to apply traditional legal concepts amid the current poisonous political atmosphere. But on Tuesday, that same observer might very well conclude that the chief justice and the majority had resolved that genuine dilemma poorly.
This is not only a bad result; it is a bad opinion, and a bad omen for those who look to an independent judiciary as a
