One longtime Supreme Court reporter once told me that the best way to wrap your brain around a hot-button decision was to read it backwards — the dissent first, so as to get a good grasp of the holes and weaknesses in the majority’s reasoning. The suggestion holds for Trump v. Hawaii, the Supreme Court’s consideration of the third version of President Trump’s travel ban, which targets mostly Muslim-majority nations. In a decision announced Wednesday, a 5-to-4 conservative majority determined the executive order to be neither unconstitutional nor unlawful. What many lower courts and appellate judges couldn’t stomach, it turns out, is just fine for five Supreme Court justices.
But to understand what Chief Justice John Roberts, perennial arbiter of balls and strikes, does in reaching that strained conclusion, it’s instructive to read what Justice Sonia Sotomayor wrote in rebuttal. “Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge” to the entry ban, she writes in dissent, “that highly abridged account does not tell even half of the story.” Indeed, Roberts largely overlooks the bulk of Trump’s hefty record of Islamophobia and the role it might have played in the genesis of the executive order. For instance, he acknowledges — but mostly disregards — that Rudy Giuliani once bragged that Trump had asked him to craft a ban on Muslims “legally.”
According to the Chief Justice, because the ban didn’t explicit mention Muslims and was — to his mind — carefully considered, the Supreme Court shouldn’t do much about it. “Any rule of constitutional law that would inhibit the flexibility of the President to respond to changing world conditions should be adopted only with the greatest caution, and our inquiry into matters of entry and national security is highly constrained,” Roberts writes, quoting from an earlier opinion. From there on out, he proceeds to analyze it under the most forgiving of judicial standards — so forgiving, just about any government edict not openly bigoted survives it.
Roberts — along with Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch — not only buy the administration’s argument that Trump’s record of contempt for Muslims should be largely irrelevant to its assessment, they also don’t believe the untold damage he has done to the dignity of Muslims in the United States and abroad should be considered. “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Justice Sotomayor shoots back. “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.”
Then Sotomayor forces the majority to do something that the Supreme Court should’ve done a long time ago: Repudiate in its own pages Korematsu v. United States, a landmark anticanon that ranks among the worst decisions in the court’s history. Roberts seems bothered by the comparison of Trump’s travel ban to the internment of Japanese-Americans during World War II, but he plays along. “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” he writes. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
Neither the Trump administration nor Hawaii, the state that challenged the executive order, had explicitly asked the justices to abandon one of its saddest precedents. But there, as in here, the specter of a president acting on impulse and prejudice loomed large. Sotomayor sees the majority’s “overruling” of Korematsu as a “long overdue” maneuver. But that was mostly a Pyrrhic victory in the context of the overall decision, which purports to erase bad law that’s still very much alive. “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,” Sotomayor charges. She reportedly read a version of this dissent from the bench.
The most puzzling, if not pointless, of the ancillary opinions accompanying Trump v. Hawaii came from Justice Kennedy, who just weeks earlier had commanded a solid majority in ruling for a Christian baker who had been the target of “religious hostility” by government officials. In that case, the Supreme Court went out of its way to chastise a Colorado civil rights commission that had displayed some anti-Christian views in considering his attempt to deny service to a gay couple. The hypocrisy, and differential treatment of religions, was too thick for Sotomayor to ignore: “Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant,” she wrote.
Rather than engage that protestation head on, Kennedy wrote an toothless, two-page lamentation that more or less reads as an exhortation to the president to be civil and kind and respectful to all religions in these trying times, for the First Amendment demands no less. “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,” Kennedy wrote. “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.” He may as well give up his seat for Trump to fill and call it a day.
(Justices Stephen Breyer and Elena Kagan, in their own separate dissent, seemed inclined to strike down Trump’s entry ban as unconstitutional, but felt there needed to be more “judicial factfindings” to uncover its deficiencies; they would’ve kept the entry restrictions on hold until a full trial was held. Justice Thomas, for his part, wrote a concurring opinion to complain about “nationwide” injunctions, a recent trend in federal courts that Trump opponents have relied on successfully to block a number of his policies — including the travel ban.)
The ink on Trump v. Hawaii hadn’t even dried when Mitch McConnell, the Senate majority leader largely responsible for Gorsuch’s presence on the Supreme Court, decided it would be a good idea to take a social media victory lap with the ruling. Such craven celebration over a decision that may well occupy its own place in the pantheon of the most deplorable ever issued reflects how low our judicial politics have fallen. There was always a risk that Roberts and his colleagues would treat Trump just like any other president, and not like the aberration that he is.
But this wholesale blessing of sweeping presidential authority, one that casts aside much of his shameful derision of religious minorities, doesn’t bode well for how the Supreme Court will react to other challenges where Trump’s denigration of the least among us is directly under scrutiny. Under the court’s Trump-specific analysis, just about any official indignity that unduly burdens the lives of minorities or marginalized groups within our borders may well be tolerated. All the president has to do is not say the quiet part loud, issue an order that isn’t blatantly discriminatory, and maybe claim some national-security prerogative under existing law. Do those things, and legal success is virtually guaranteed. With the court taking this view, not even the Constitution can be expected to stand as a check on Trump.