There might be no more high-profile case on the U.S. Supreme Court’s docket this term than Trump v. Hawai`i, where the justices will decide the fate of the most recent presidential proclamation banning entry to the United States by many aliens from eight countries. The proclamation is being challenged on grounds, among others, that it unconstitutionally discriminates on the basis of religion.
The case has attracted many amici curiae. Two of those seeking to sway the justices are particularly notable because they themselves are former justices, of the California Supreme Court — Justices Joseph Grodin and Kathryn Werdegar. They signed onto a brief by 36 appellate lawyers that supports the ban’s challengers. Another signatory is Michael Traynor, son of legendary former California Chief Justice Roger Traynor. [Disclosure: I also signed onto the brief.]
The amici brief argues that “[a]ppellate review of executive orders that legislate should embrace all verifiable evidence of a President’s motive or intent when motive or intent is relevant” and it attempts to show “what perils attend a judiciary’s failing to take a leader at his or her word.” The brief does this by delving into the legal history of pre-World War II Germany. From the introduction:
Part I documents how the judiciary in another rule-of-law nation – Germany in 1933 – failed to see clearly and question deeply when facing a would-be totalitarian. Seduced by popular nationalism and cowed by factions angry over unemployment and underemployment, the German judiciary – like many other thoughtful German leaders and later world leaders – appeased when it should have stood its ground under its nation’s constitution and rule-of-law tradition. The courts facilitated the plurality government’s descent into totalitarianism. The result was not security or prosperity. It was tens of millions of deaths and Germany’s destruction.