Justice Anthony Kennedy would like the world to know that he’s no fan of President Trump’s anti-Muslim rhetoric even while he provided the crucial vote upholding the President’s travel ban, which targeted some majority-Muslim countries after Trump during the campaign promised a ban on Muslims entering the United States.
Kennedy filed a brief concurrence with the majority’s 5-4 opinion upholding the third iteration of the Trump policy. The justice did not call out Trump by name, but said that, while certain government actions and statements are not subject to judicial scrutiny, it is “imperative” for a government official “to adhere to the Constitution and to its meaning and its promise.”
He then referenced the Constitution’s First Amendment, which protects freedom of religion:
The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
Court observers are watching closely to see if Kennedy chooses to retire this summer. Doing so would let Trump appoint a replacement who could sit on the court for decades.
Read the Kennedy concurrence, which starts on page 45 below: