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Trump passes the travel ban buck to the Supreme Court

President Trump lashed out at his own Justice Department Monday for seeking the Supreme Court’s backing for a ‘‘watered down, politically correct version’’ of the travel ban he signed in March.@realdonaldtrump Twitter account

Judges are people too — and President Trump is betting that justices of the Supreme Court are probably people who don’t want to be blamed for any future terrorist attack on American soil.

Trump’s Twitter snit after the recent London attack was trashed as crazy and harmful to Department of Justice efforts to convince the Supreme Court to lift multiple federal court orders that block a Trump-ordered temporary ban on travel from six Muslim-majority countries. Yet the president’s tweets play up something more visceral than any legal brief: the night of blood and terror that left eight dead in London and many questions about British security lapses. Attacks in Kabul and Tehran add to a sense of worldwide chaos tied to Muslim extremists.


Fear of terrorism is out of proportion to actual risk, and there’s no evidence a travel ban would reduce the probability of another attack in the United States. But perception matters, and Trump is a master at milking it for his own agenda. “He could be setting it up (with the Supreme Court) so it’s a political argument: If there’s a terrorist attack, it’s your fault,” said Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, which went to court to fight Trump’s first travel ban on grounds that it constituted an unconstitutional “Muslim ban.”

The fight over Trump’s proposed travel ban reached the Supreme Court last week, when Justice Department lawyers filed a petition seeking review of an appeals court decision to block the ban. After the London attack, Trump posted a series of tweets referring to his revised ban as “a watered-down politically correct version” and calling for a “much tougher version” in the future. That conflicts with arguments of Justice Department lawyers, who say the Supreme Court should only consider the actual language of the executive order, without second-guessing Trump’s Twitter-expressed goals or motivations.


George Conway — the husband of Trump adviser Kellyanne Conway, who withdrew his name from consideration for a top Justice Department position — made headlines when he tweeted that while Trump’s tweets may make some people “feel better,” they won’t help the travel order get the five votes the president needs on the Supreme Court, and “that is what actually matters. Sad.”

Yet Trump may get the votes he needs, for legal reasons as well as some political ones. If so, it won’t be the first time real-world concerns influenced a high court ruling. Chief Justice John Roberts famously found a way to uphold Obamacare because he didn’t want to upend a major executive initiative, not to mention cause millions of Americans to lose health insurance coverage.

As explained in The New York Times, it takes four votes to grant the Supreme Court review sought by Trump. The government also wants the court to set aside the rulings that block the travel ban. It takes five votes to do that. “This order has been the subject of passionate political debate,” the government’s brief states. “But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order and this constitutional moment.”

Do Supreme Court justices really want to deny Trump’s authority to call the shots on national security and immigration policy? If anything bad happens, Trump will be happy to do what he always does — pass the buck right to them.

It takes real courage to stand up to real fear-mongering.

Joan Vennochi can be reached at vennochi@globe.com. Follow her on Twitter @Joan_Vennochi.