“When, in writing for the majority of the Court, I adopt a general rule, and say, ‘This is the basis of our decision,’” the late Justice Antonin Scalia once warned, “I not only constrain lower courts, I constrain myself as well.” For, “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.” Once the precedent is set, it guides future cases.
Scalia’s ideological ally, Justice Samuel Alito, is likely to get an unexpected reminder of the consequences of sticking sweeping language into a Supreme Court opinion without first considering all of its implications—much to the chagrin of President Trump.
Trump signed an executive order on Friday barring many Syrian refugees from entering the United States indefinitely. Yet, in an interview with the Christian Broadcast Society’s David Brody, Trump suggested that he would give special treatment to refugees who are Christian.
In response to Brody’s question whether “persecuted Christians“ are “kind of a priority here,” Trump responded “yes.” Trump then claimed that Christians in Syria have faced unusual difficulties and so “we are going to help them.”
The upshot is that a Syrian Christian who faces persecution may be admitted to the United States, but an identically situated Muslim who faces identical persecution could be excluded.
It’s very hard to square this kind of religious discrimination with the First Amendment, which prohibits laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” Just ask this guy: