Justice Sonia Sotomayor’s dissent (joined by Justice Ruth Bader Ginsburg) in the Muslim-ban case shows what kind of opinion comes from a judge who does not avert her eyes from reality — namely that we live in a country whose president deliberately fans racial animus.
Sotomayor’s words should have made the majority — especially Justice Anthony M. Kennedy — squirm. She wrote:
The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.
As she goes on to document, the unceasing declarations from Trump that he was out to ban Muslims because followers of Islam “hate us,” as he put it, one comes away with the firm conviction that no one could rationally see that this was anything other than an order intended to give voice to his anti-Muslim bigotry. She ruefully observes, “Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge . . . that highly abridged account does not tell even half of the story.” She spends several pages recounting these statements, some of which came after earlier versions of the ban were struck down.
“Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications,” she found. Indeed it would be like recounting George Wallace’s comments in 1963 about segregation but finding his refusal to allow African Americans into an all-white school was based on some legitimate educational rationale. If Trump shouted from the rooftops, “Of course I did it to get Muslims!” the majority would no doubt find reason to disregard the confession. (And isn’t that what he did over and over again — confess to anti-Muslim bigotry?)
She also eviscerates the flimsy national security rationale, pointing out that “Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation.”
Sotomayor then turns the knife just a tad. She implicitly points her finger at Kennedy’s rank inconsistency when he ruled for the baker in the Masterpiece Cakeshop case, after stray remarks betraying anti-religious bias were made by local commissioners:
In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty. Just weeks ago, the Court rendered its decision in Masterpiece Cakeshop. . . which applied the bedrock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action.Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. 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. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “that they are outsiders, not full members of the political community.” [Citations omitted.]
Sotomayor isn’t buying the majority’s disclaimer that Korematsu was wrongly decided. “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.”
I cannot help but agree.