In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban.
Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.
The decision will be a stain not only on the legacy of the Roberts court, but on that of the Supreme Court itself. The court tried to compensate by saying how bad the Korematsu decision was. And Justice Anthony Kennedy wrote a separate concurrence in which he hints that perhaps the lower courts could reconsider the question of anti-religious animus. But these efforts are far too little to save the court, or Kennedy, from the judgment of history, which will be harsh.
Roberts’s opinion focuses mostly on the Immigration and Nationality Act, which gives the president the authority to exclude foreigners if he finds that their entry “would be detrimental to the interests of the United States.” Yet to focus on Roberts's analysis would be to make the same crucial error as Roberts himself — that is, treating one of the most outrageous acts of presidential bias in modern U.S. history as though it were an ordinary exercise of presidential power, taken by an ordinary president acting in good conscience.
When Roberts comes to the topic of bias, he recounts Trump’s anti-Muslim statements and the history of the travel ban (this is the administration’s third version). Then he balks. “The issue before us is not whether to denounce the statements,” Roberts writes. Rather, Roberts insists, the court’s focus must be on “the significance of those statements in reviewing a presidential directive, neutral on its face, addressing the matter within the core of executive responsibility.”
That is lawyer-speak for saying that, despite its obviousness, the court would ignore Trump’s anti-Muslim bias. Roberts is trying to argue that, when a president is acting within his executive authority, the court should defer to what the president says his intention is, no matter the underlying reality.
That’s more or less what the Supreme Court did in the Korematsu case. There, Justice Hugo Black, a Franklin D. Roosevelt loyalist, denied that the orders requiring the internment of Japanese-Americans were based on racial prejudice. The dissenters, especially Justice Frank Murphy, pointed out that this was preposterous.
Justice Sonia Sotomayor, the court’s most liberal member, played the truth-telling role today. Her dissent, joined by Justice Ruth Bader Ginsburg, states bluntly that a reasonable observer looking at the record would conclude that the ban was “motivated by anti-Muslim animus.”
She properly invokes the Korematsu case — in which, she points out, the government also claimed a national security rationale when it was really relying on stereotypes. And she concludes that “our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”
Indeed, Sotomayor makes it painfully clear that the man in the Oval Office making these "national security decisions" is a screaming, inchoate bigot in her dissent.
As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow questionhere is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose ofthe Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary, 545
U. S., at 862–863. The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the
Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id., at 121, promised to enact a “total and complete shutdown of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l]” way to enact a Muslim ban, id., at 125.3 The President continued to make similar statements well after his inauguration, as detailed above, see supra, at 6–10.
Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam.4 Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint.
I mean when's the last time you can recall a Supreme Court Justice saying, like this, that the current leader of the the US was a bigoted asshole like this?
But that's where we are. And you'd better believe that Trump will use this green light to determine that other groups of people present "national security threats" and must be dealt with.
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