Motivated By Anti-Muslim Animus”: Must-Reads From Justice Sotomayor’s Dissent On Trump’s Travel Ban

The Supreme Court ruled 5 – 4 Tuesday to uphold President Donald Trump’s ban on allow­ing trav­el from six coun­tries in a major deci­sion that inspired out­rage from the court’s lib­er­al jus­tices. In a sep­a­rate writ­ten dis­sent joined only by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor used Trump’s inflam­ma­to­ry rhetoric about Muslims to under­score the “stark par­al­lels” between the major­i­ty opin­ion and one of the high court’s most shame­ful moments: Korematsu v. United States, the deci­sion that upheld Japanese intern­ment dur­ing World War II. .

A rea­son­able observ­er would con­clude that the Proclamation was moti­vat­ed by anti-Muslim ani­mus,” Sotomayor wrote. “The major­i­ty holds oth­er­wise by ignor­ing the facts, mis­con­stru­ing our legal prece­dent, and turn­ing a blind eye to the pain and suf­fer­ing the Proclamation inflicts upon count­less fam­i­lies and indi­vid­u­als, many of whom are United States cit­i­zens.”

In the major­i­ty opin­ion, the jus­tices explic­it­ly over­ruled the 1944 Korematsu deci­sion, but Justice Sotomayor reject­ed their argu­ments, say­ing that their actions “mere­ly replaces one ‘grave­ly wrong’ deci­sion with anoth­er”

In the inter­ven­ing years since Korematsu, our Nation has done much to leave its sor­did lega­cy behind … Today, the Court takes the impor­tant step of final­ly over­rul­ing Korematsu, denounc­ing it as “grave­ly wrong the day it was decided.”…This for­mal repu­di­a­tion of a shame­ful prece­dent is laud­able and long over­due. But it does not make the majority’s deci­sion here accept­able or right. By blind­ly accept­ing the Government’s mis­guid­ed invi­ta­tion to sanc­tion a dis­crim­i­na­to­ry pol­i­cy moti­vat­ed by ani­mos­i­ty toward a dis­fa­vored group, all in the name of a super­fi­cial claim of nation­al secu­ri­ty, the Court rede­ploys the same dan­ger­ous log­ic under­ly­ing Korematsu and mere­ly replaces one “grave­ly wrong” deci­sion with anoth­er.

Chief Justice John G. Roberts wrote the major­i­ty opin­ion and dis­pensed with the reli­gious debate in order to focus sole­ly on whether Trump sat­is­fied the demands of the Immigration and Nationality Act. In response, Sotomayor argued that Trump’s exec­u­tive order should have been struck down based on the Establishment Clause of the First Amendment, which ensures that the gov­ern­ment “can­not favor or dis­fa­vor one reli­gion over anoth­er.”

In reach­ing that con­clu­sion, Sotomayor flat­ly reject­ed the government’s request to ignore Trump’s mul­ti­ple state­ments about Muslims and his ear­li­est descrip­tion of the exec­u­tive order as a “total and com­plete shut­down” of Muslims enter­ing the US. “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,” Sotomayor wrote.

Sotomayor com­pared Trump’s many broad­sides against Islam, which com­prise sev­er­al para­graphs of her dis­sent, with the Court’s recent 7 – 2 rul­ing in Masterpiece Cakeshop v. Colorado Civil Rights Commission, not­ing, “The Court recent­ly found less per­va­sive offi­cial expres­sions of hos­til­i­ty and the fail­ure to dis­avow them to be con­sti­tu­tion­al­ly sig­nif­i­cant.” In the after­math of the Masterpiece case, some legal experts had sug­gest­ed that Justice Anthony Kennedy’s rul­ing, which depend­ed on hos­tile state­ments made about reli­gion by Colorado pub­lic offi­cials, might fore­shad­ow his rejec­tion of Trump’s trav­el ban on sim­i­lar grounds. It didn’t.

Sotomayor said Trump’s order fails to even clear the stan­dard set by “ratio­nal-basis review,” the low­est bar of judi­cial scruti­ny, because the “admin­is­tra­tive review” under­gird­ing it is too uncon­vinc­ing in its aims and secre­tive in its process to dis­tin­guish the order from its pub­lic his­to­ry as a Muslim ban.

She was sim­i­lar­ly uncon­vinced by the government’s con­tention that the trav­el ban did not tar­get Islam specif­i­cal­ly, call­ing the inclu­sion of North Korea and Venezuela on the list of pro­hib­it­ed regions “insub­stan­tial, if not entire­ly sym­bol­ic.” The order still “over­whelm­ing­ly tar­gets Muslim-major­i­ty nations,” she wrote, adding that the US “remains whol­ly unable to artic­u­late any cred­i­ble nation­al-secu­ri­ty inter­est that would go unad­dressed by the cur­rent statu­to­ry scheme absent the Proclamation.” If any­thing, the ben­e­fits of such an order would be redun­dant giv­en exist­ing immi­gra­tion vet­ting pro­to­cols, she argued.

As a fine point in con­clud­ing her dis­sent, Sotomayor bor­rowed an approach pop­u­lar­ized by her late, con­ser­v­a­tive col­league, Justice Antonin Scalia. When he espe­cial­ly dis­agreed with a Court rul­ing, he would dis­pense with tra­di­tion­al pro­to­col and end his dis­sent­ing opin­ions with­out the usu­al “I respect­ful­ly dis­sent” in favor of some plain­er lan­guage. Sotomayor opt­ed for the harsh­er option: “Our Constitution demands, and our coun­try deserves, a Judiciary will­ing to hold the coör­di­nate branch­es to account when they defy our most sacred legal com­mit­ments. Because the Court’s deci­sion today has failed in that respect, with pro­found regret, I dis­sent.” https://​www​.moth​er​jones​.com/​p​o​l​i​t​i​c​s​/​2​0​1​8​/​0​6​/​s​o​t​o​m​a​y​o​r​-​d​i​s​s​e​n​t​-​t​r​u​m​p​-​t​r​a​v​e​l​-​b​an/