The Law Is No Place for Ethics

Neal Katyal, the attorney who argued against the Trump administration in the case Trump v. Hawaii, speaks to the media outside the Supreme Court (AP Photo/Andrew Harnik)

Lawfare‘s Quinta Jurecic does a close read of the U.S. Supreme Court opinion and dissents in Trump v. Hawaii, aka the Muslim travel ban case. The majority opinion upholding the ban might not be legally wrong according to the letter of the law — but should the SCOTUS look at what is just as well as what is legal?

While scholars of presidential power will debate for years to come whether the opinion of the court majority or Sotomayor’s dissent has the stronger legal case, Sotomayor’s opinion has a certain moral urgency of which Roberts and the majority have intentionally purged themselves. Roberts and Kennedy may be right as a technical matter that the president’s oath is not for the Supreme Court to judge. But their opinions, particularly by invoking Korematsu, raise anew the question that Jackson’s Korematsu dissent has long posed: What does it mean, in the face of profound ugliness on the part of the executive branch, to declare the judgment of that ugliness to have “no place in law”?

Read the essay