By David Cole
At the close of his opinion upholding President Donald Trump’s ban on immigrants from five predominantly Muslim countries, Chief Justice John Roberts proclaimed on Tuesday that “Korematsu has nothing to do with this case.” He went on to write that Korematsu v. United States, the 1944 decision that backed the internment of Japanese citizens and immigrants based on their race, “was gravely wrong the day it was decided, has been overruled in the court of history and—to be clear—has no place in law under the Constitution.”
Strong words. But actions speak louder. Even as he acknowledged the court’s error in Korematsu, Roberts repeated it, virtually verbatim, in Trump v. Hawaii. Here, as in Korematsu, the president targeted a vast group of people based on prejudice. Here, as in Korematsu, the president defended his action by citing national security, but offered no evidence to support the assertion. And here, as in Korematsu, the court accepted those unsubstantiated national security concerns without question, applied only the most anemic judicial review, and rubber-stamped the president’s actions. Just as the court would in no other context accept such blatant racial discrimination as that imposed on Japanese Americans during World War II, so the court would in no other setting accept the rampant bias President Trump showed toward the Muslim faith in the travel ban. In both cases, the court deferred to the prejudice of the powerful and abdicated its duty to protect the rights of the vulnerable.
Indeed, as one commenter on Twitter noted, if Korematsu really had nothing to do with Trump v. Hawaii, the court could just as well have announced its overruling of the 1944 decision in its antitrust ruling the day before. But, of course, Korematsu had everything to do with the travel ban case. That’s why Roberts felt compelled to try, unpersuasively, to distinguish it. But if anything, the distinctions cut the other way, making the court’s blessing of the travel ban even less explicable. The internment—and the decision allowing it—was the product of a true wartime national emergency. Today, the permanent “war on terror” lingers on, but there is no threat to the US that is equivalent to those posed by Nazi Germany or Imperial Japan in the 1940s.
When the Trump administration sought to identify persons who had come from the banned countries and engaged in terrorism, it was able to cite one sole suspect who came from Somalia and was eventually convicted of providing material support to a terrorist group. But he came to the US when he was a toddler and was convicted a decade and a half later. That’s hardly evidence of a national security crisis.
By contrast, the evidence that the ban was targeted at Muslims was overwhelming; the president openly admitted as much on the campaign trail, and pursued that purpose once in office. Indeed, no one on the court even disputed that the president had acted with anti-Muslim animus; the only real dispute was about the legal implications of that intent. The lower courts had ruled that the ban violated the Establishment Clause, which requires government to maintain strict neutrality among religions and deems invalid any government action that a “reasonable observer,” aware of all the publicly available facts, would view as intended to promote or denigrate a particular religion.
In the Supreme Court, the Trump administration lawyers urged the court to ignore the president’s many statements exhibiting anti-Muslim animus. They argued that the court should consider only the formal “proclamation” issued by the president (and written by his lawyers). Since that proclamation did not mention Muslims but merely named countries that are overwhelmingly Muslim, the government argued, the court should not even consider the evidence that the president implemented this ban in order to target Muslims.
Chief Justice Roberts, joined by his four conservative colleagues, did not accept wholesale the government’s arguments. Roberts’s opinion dutifully recounted the evidence of Trump’s bias—although, as Justice Sonia Sotomayor’s dissent reveals, he omitted many damning details. He “assumed” that the court could consider this evidence, and made no attempt to deny that a reasonable observer would see the ban as anti-Muslim. Instead, he reasoned that because the president was exercising the immigration power in the name of national security, the court would ask not whether a “reasonable observer” would perceive religious prejudice, but only whether there was any other “plausible” basis for the president’s action. He went on to conclude that there was at least a plausible basis for the order, on the grounds that the targeted countries either failed to provide sufficient information to guide visa decisions or were themselves supporters of terrorism.
So, if Roberts did not close his eyes, he certainly looked away. Two points are especially noteworthy. He did not dispute that the order was anti-Muslim in intent. And he did not affirm that the order was genuinely based on national security concerns: it was enough that it might be “plausible.” That’s a low bar. On this test, it would not have mattered if the president, upon signing the proclamation, had looked up and said, “I’m doing this because we are a Christian country and Muslims are not welcome here.” As long as it’s “plausible” that national security might be at issue, the court gives the president a pass on even the most venomous prejudice.
Justice Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a blistering dissent. (Justices Elena Kagan and Stephen Breyer also dissented, on narrower grounds.) Sotomayor castigated the court for failing to live up to its duty: “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.” The majority “failed in that respect,” she maintained, 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.” She concluded that the president’s proclamation violated the Establishment Clause because it was “contaminated by impermissible discriminatory animus against Islam and its followers.”
Justice Anthony Kennedy, who announced his retirement from the court the following day, offered, in his last opinion as a Supreme Court justice, a two-page concurrence. In it, he explained that he joined Chief Justice Roberts’s decision in full, but wrote to say that the mere fact that the court was affirming President Trump’s actions doesn’t mean the president is “free to disregard the Constitution and the rights it proclaims and protects.”
Among those rights, he insisted, are the free exercise of religion and the protections of the Establishment Clause. He continued:
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. 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.
In essence, Kennedy urged Trump to behave himself—good luck with that. But Kennedy’s plea for presidential self-restraint is in fact an abdication. When a government official violates the Constitution, it is the court’s responsibility to hold him accountable, not to lecture him about manners. Kennedy knew this. In Boumediene v. Bush, he provided the deciding vote and wrote the court’s opinion insisting, against the will of the president and of Congress, that those detained at Guantánamo Bay Naval Base as “enemy combatants” had a right to go to court to challenge their detentions. Here, too, Kennedy had the potential to hold the president accountable. In his final opinion as a justice, he failed to do so.
It’s not fair to blame the result on Justice Kennedy alone. Not a single justice disputed that President Trump’s order was infected by anti-Muslim animus, yet all five justices in the majority nonetheless declined to protect the constitutional rights of the vulnerable in the face of blatant prejudice. Any of the five could have stood between the president and the Constitution they are pledged to uphold, and protected the millions of Muslims affected. Instead, they all joined Chief Justice Roberts in looking the other way.
That the court was unwilling to rule against the president in such egregious circumstances does not portend well for the future of the separation of powers. As a legal matter, lawyers in future cases will be able to argue that this case’s reasoning should be limited to national security measures invoked to deny entry, and should not extend further. The courts have long given the political branches wide leeway regarding who may enter the country. And, of course, the “war on terror” cases aside, the court’s record in checking the executive when it asserts national security concerns is generally underwhelming. So if Trump violates the Constitution through measures that don’t involve entry decisions and national security, the courts may still be a viable safeguard.
The president’s inhumane policy of separating children from parents seeking asylum, for example, involves people within the United States, and presents no discernible national security issues. And the administration’s constitutionally doubtful actions in denying undocumented teenagers access to abortion, in excluding transgender individuals from the military, and in penalizing states that choose not to enforce federal immigration laws, should all be subject to ordinary constitutional review—and that leaves open the possibility, at least, of the court’s finding in favor of plaintiffs in these cases, as lower courts already have.
More broadly, though, the court has sent a signal to the president. Perhaps it wouldn’t let him get away with standing in the middle of Fifth Avenue and shooting someone, but it will look away when he targets some 150 million Muslims because of the faith they practice. That is exactly the wrong message to send this president.
And with Justice Kennedy’s retirement, the willingness of the Supreme Court to support the powerless against the powerful seems to be in even greater doubt. Despite his disappointing vote in Trump v. Hawaii, Kennedy had shown a capacity to stand with the marginalized. He authored critical decisions that recognized gay rights, prohibited the death penalty for juvenile offenders, preserved the right to abortion, and permitted affirmative action. His four conservative colleagues, by contrast, have typically shown more solicitude for states’ rights, big business, and government officials sued for violating people’s rights than for people themselves. If Trump gets away with nominating another doctrinaire conservative justice, Trump v. Hawaii may be only the beginning of the Supreme Court’s looking away.
David Cole is the ACLU Legal Director