John Roberts’s opinion for a bare majority of the Court today upholding a travel ban plainly motivated by explicit and repeatedly expressed animus against a disfavored minority, as Stotomayor says, repudiates Korematsu after the fact while disgracefully repeating its fundamental errors:
The Establishment Clause of the First Amendment forbids the government from treating people differently on the basis of their religion. While Trump’s travel ban was neutral towards religion on its face, compelling evidence that its otherwise arbitrary selection of seven countries, five of them majority-Muslim, was motivated by religious bias is provided by Trump’s own words. As the majority opinion acknowledges, Trump repeatedly expressed anti-Muslim animus as a candidate and described his first order as a “Muslim ban” after his inauguration. And as Justice Sonia Sotomayor points out in her dissenting opinion, a statement that was still on his campaign website in May 2017 Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” It’s hard to imagine more compelling evidence of discriminatory intent, and Trump has never repudiated these statements.
Chief Justice John Roberts’ defensive and highly unpersuasive opinion upholding Trump’s order despite the incontrovertible evidence of anti-Muslim animus rests on a conclusion that “there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns.” Given the traditional deference shown by the Court towards the executive when it’s acting in the realm of national security, the Court therefore found that the order was probably constitutional and should be allowed to go into effect.
The Court has never held, however, that the deference owed to the president over national security was absolute. Indeed, in a protesting-too-much conclusion to his desultory opinion, Chief Justice Roberts acknowledges that the Court’s upholding of FDR’s internment of people of Japanese descent in Korematsu v. United States “was gravely wrong the day it was decided, has been overruled in the court of history.” Even the context of world war, the chief justice acknowledges, should not immunize presidential actions taken out of racial or religious animus from judicial scrutiny.
These words, however, ring hollow in light of the Court’s approval of an order plainly motivated by anti-religious bias and — contrary to the majority’s assertion — justified by national security pretexts that are far from “persuasive.” As Justice Sotomayor says in a powerful dissent joined by Justice Ruth Bader Ginsburg, “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.” The Court’s apparent conclusion that the Court can serve as a check on racial and religious animus in the name of foreign security several decades in retrospect but not contemporaneously is cold comfort indeed.
The Court’s holding in Trump v. Hawaii is particularly outrageous in light of its recent decision in Masterpiece Cakeshop. In that case, the Court found statements by civil rights commissioners that were qualitatively and quantitatively much weaker evidence of religious evidence sufficient to render an application of civil rights law unconstitutional. As Sotomayor argues, “the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. It should find the same here.”
Reflecting the very strong likelihood that Trump v. Hawaii will be regarded by history about as well as Korematsu, Justice Anthony Kennedy — author of the Masterpiece Cakeshop decision — wrote a brief and rather pathetic concurrence abdicating responsibility. “The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise,” Kennedy asserts, essentially imploring Trump not to be Trump.
But — as the chief justice’s condemnation of Korematsu makes plain — it’s simply not true that the president’s order must be “free from judicial scrutiny” just because it has an alleged security justification. The Constitution remains in force; alleged national security concerns do not make constitutional an executive order motivated by religious animus. Like Justice Felix Frankfurter’s claim in Korematsu that the racist order upheld by the Court was “their business, not ours,” this is unconscionable buck-passing that will not withstand historical scrutiny.
Just as Kennedy’s concurrence echoed Frasnkfurter’s, there are a lot of parallels between Black’s opinion in Korematsu and Roberts’s in its historical sequel. Roberts , describing Korematsu [my emphasis]:
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. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.
That “solely” is certainly telling. At any rate, this is of course exactly what Black claimed in Korematsu — that the executive order was motivated by national security concerns and not racial animus:
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.
The majority knew perfectly well by this time that the exclusion was motivated much more by racial animus than by military necessity, although much less of the evidence was public that in was in the case of Trump. The Court today did exactly what the Court did in Korematsu: ignore overwhelming evidence of animus to uphold an military order, in favor of a national security pretext that if anything is even weaker in this case (the country was actually at war with Japan!) History will be about as kind to this opinion as it will to Neal Katyal’s fawning over Neil Gorsuch.
I conclude with the accounting of Trump’s repeated statements of animus from Sotomayor’s dissent, which should be read in full:
Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). The full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.
During his Presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on December 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which remained on his campaign website until May 2017 (several months into his Presidency), read in full:
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing ‘25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.
“Mr. Trum[p] stated, ‘Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for President, we are going to Make America Great Again.’—Donald J. Trump.” Id., at 158; see also id., at 130–131.
On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id., at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to “rethink [ his] position” on “banning Muslims from entering the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid.
As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123.
A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] extreme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid.
On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu- lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of President Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Ibid.
John Roberts: “this is nothing like the Japanese internment.” Donald Trump: “goddamned right this like the Japanese internment, and FDR was right.”