Justice Neil Gorsuch may have been the deciding vote to uphold President Donald Trump’s travel ban blocking citizens from five Muslim-majority countries and some people from Venezuela and North Korea from entering the United States. But it’s Chief Justice John Roberts who owns the decision—and all it will come to stand for.
The legal battle over the travel ban pits the executive authority under immigration law to limit the entry of certain classes of people against the very core of our democratic ideals of religious tolerance and pluralism. In a 5-4 ruling Tuesday, the conservative wing of the U.S. Supreme Court chose to side with executive power—in the process, willfully ignoring the president’s own statements that the orders were designed to target Muslims.
The first order was issued on January 27, a week after Trump was inaugurated. That order imposed a 90-day ban on the entry into the United States of citizens from seven countries: Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen. The January order also put a 120-day hold on the admission of refugees, with a carveout for refugees who were religious minorities in the listed countries. The federal courts blocked that order, which prompted the administration to issue an updated version in March. That order also imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the first order, but removed Iraq from the list. The March order also suspended the entry of refugees, but this time made no exception for religious minorities fleeing the countries listed on the order. The federal courts blocked that order as well, so the Trump administration appealed to the Supreme Court.
In June 2017, the Court agreed to step in to hear a challenge to the March order. But that order expired before the Court could hear the case. The Trump administration then issued a third version of the travel ban in September. The version of the order bars citizens of five Muslim-majority countries, as well as certain individuals from North Korea and Venezuela, from entering the United States. That version was again challenged and blocked by the lower courts. And on Tuesday, the Roberts Court gave the order its blessing.
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In his majority opinion, Roberts begins by saying that because the order didn’t say “Muslim;” because the president and his team said it was important for national security; and because the president took Iraq, a predominately-Muslim country, off the list, there’s not enough evidence to suggest the ban unconstitutionally targets Muslims. This, despite the president’s own statements to the contrary.
In fact, Roberts then addresses the issue of the president’s Islamophobic statements directly—to say, basically, that the presidency comes with a special kind of power that, in turn, gets special consideration from the Court.
“At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation,” Roberts wrote. He then goes on to list some of those statements, like Trump’s calls for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on” and his promise to “ban Muslim immigration.” Sure, those statements sound bad, Roberts acknowledges, but “[t]he President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.” He then gives a list of citations to presidential proclamations of religious tolerance from other administrations.
For real. He did that. He quoted a bunch of xenophobic Trump statements and then effectively said, “The president speaks for us.”
Those challenging the ban had argued that it improperly targeted Muslims in violation of the First Amendment’s Establishment Clause. But after placing Trump’s statements in the same breath as George W. Bush’s September 11, 2001, remarks at the Islamic Center calling for religious tolerance, Roberts then pivots to explain that Trump’s Islamophobic statements can’t be a violation of the Establishment Clause—because Trump is the president and because he was talking about national security when he said those Islamophobic things.
“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts wrote. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
Roberts continues. “The case before us differs in numerous respects from the conventional Establishment Clause claim,” said Roberts. “Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof.”
The liberal wing of the Court is having none of Roberts’ argument rationalizing Trump’s Islamophobia as legitimate national security policy.
In his dissenting opinion, which Justice Elena Kagan joined, Justice Stephen Breyer uses the Trump administration’s own sham waiver process for those affected by the ban but still trying to get into the county as additional evidence the ban was motivated by religious animus. Meanwhile, in her dissent, Justice Sonia Sotomayor calls out the majority’s racism so directly by comparing the administration’s actions and justifications to those that were used to defend Japanese internment during World War II that the Chief Justice ended up using his opinion to overturn Korematsu v. United States, the 1944 decision that upheld that internment.
As Mark Joseph Stern pointed out for Slate, Roberts may have overruled Korematsu—claiming it “has no place in law under the Constitution”—but he managed to replace it with something just as odious. It’s a stunning display of Roberts either being unable to read the room or just not caring to do so.
The fight against the president’s travel ban is not yet over. The district court order that had temporarily blocked the Trump administration from enforcing the ban is reversed, but Roberts sent the case back to the lower courts “for such further proceedings as may be appropriate.” However, he gave no indication of what those proceedings might be.
In the meantime, it’s hard not to try to read between the lines in Tuesday’s opinion for how the Court could act if and when a challenge to Trump’s family separation policy of immigrants at the border should reach the Court. Will the conservative justices once again ignore the president’s own racist statements? Will they refuse to take him at his word that he does not care about constitutional norms and vote in lock-step to uphold his policies?
Justice Sotomayor recognizes this as a real possibility in the close of her dissent.
“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,” wrote Sotomayor. “Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”
Chief Justice John Roberts has maintained a reputation as a justice above the partisan fray almost entirely because he twice voted against the conservatives in challenges to the Affordable Care Act. But the reality is Roberts is no umpire just sitting there calling balls and strikes. He’s a dangerously adept political mind whose tenure on the bench has helped seal into jurisprudence the ideas that this country is “post-racial” and that the affirmative protections the law affords against discrimination are no longer needed.
Tuesday’s decision in Trump v. Hawaii is the latest in a disgraceful series of decisions from Roberts that should come to define his legacy as Chief Justice.
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