Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals makes a two-part argument that one must admire for its creativity: In the first part, he argues that, because of Trump’s dopey anti-Muslim comments during the campaign, it is reasonable to conclude that the travel restrictions constitute “invidious discrimination,” a constitutional no-no. But the Constitution, as Judge Gregory readily admits, does not protect the rights of foreign nationals not under the authority of the U.S. government or otherwise classifiable as U.S. persons: “Aliens who are denied entry by virtue of the President’s exercise of his authority under Section 1182(f) can claim few, if any, rights under the Constitution.”
Yet, he argues in the second part, failing to apply the standards of U.S. civil-rights law to . . . the entire population of the rest of the world, presumably, makes it likely that the U.S. government will violate the civil rights of U.S. citizens who share certain demographic features: “When the President exercises that authority based solely on animus against a particular race, nationality, or religion, there is a grave risk — indeed, likelihood — that the constitutional harm will redound to citizens.”
So, on the one hand the judge is attempting to read the state of the president’s soul rather than the language of the executive order, and, on the other hand, he is arguing that the executive order violates the Constitution not because it violates the Constitution but because something else might violate the Constitution — someday. Trump is in effect being accused of presidential pre-crime.
This represents what is known as outcome-oriented judicial reasoning: Pick your conclusion first, and then construct a case around it in whatever way is most convenient. It is also preposterous. It is plain judicial politicking of the sort that undermines the standing of the judiciary and the faith of the people in that judiciary. This in turn damages the perceived legitimacy of our legal institutions, undermining the rule of law itself.