With Justice Kennedy’s vote likely to determine the outcome of the case, his comments were hardly ignored in the aftermath of the argument. I’ve quoted the colloquy at length here because its entire tone is so different from what occurred two weeks ago, when the court heard the travel ban argument.
The question of religious discrimination found little traction among the conservative justices, who seemed more intent on blunting it than exploring it. They offered little resistance to the assertion by Solicitor General Noel J. Francisco that “this is not a so-called Muslim ban.” If it were, Mr. Francisco said, “it would be the most ineffective Muslim ban that one could possibly imagine, since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority counties that were covered by past orders, including Iraq, Chad, and Sudan.” (The current list includes Iran, Libya, Syria, Yemen and Somalia.)
Chief Justice Roberts, for one, seemed baffled by the very concept of discrimination in this context. Addressing the plaintiffs’ lawyer, Neal K. Katyal, the chief justice asked what would happen if the president’s military advisers suggested an airstrike against Syria. “Does that mean he can’t because you would regard that as discrimination against a majority Muslim country?” On its face, this was a ridiculous question. I can only assume it was designed to throw Mr. Katyal off stride with a display of utter disregard for the basis of his argument. If that was the strategy, it failed.
And given how worried the justices were in the Masterpiece Cakeshop argument about whether the Colorado Civil Rights Commission — or the state’s solicitor general, or the state itself — had ever disavowed a passing remark by a single commissioner, it was notable how little concern they showed for President Trump’s failure to disavow his anti-Muslim statements. Chief Justice Roberts asked Mr. Katyal whether there was “a statute of limitations on that.”
When Mr. Katyal replied that the test was what a “reasonable, objective observer” would make of the situation as a whole, Justice Alito offered this observation: “I think there are 50 predominantly Muslim countries in the world. Five — five countries — five predominantly Muslim countries are on this list. The population of the predominantly Muslim countries on this list make up about 8 percent of the world’s Muslim population. So would a reasonable observer think this was a Muslim ban?” Justice