It should take the court of history much less time to conclude that the Roberts Court was likewise wrong in deciding to uphold President Trump’s travel ban. With the frequency of Trump’s broadsides against the justice system and the rule of law, it shouldn’t be long at all.
The president, who had publicly attacked the courts and “so-called judges” while the case was going through the judicial system, and scolded his own lawyers for making the changes that allowed the ban to pass constitutional muster, wasted no time after the ruling to expand on his wish to end due process along the border.
“Somebody touches our land, we now take them to a court, to a judge,” he complained Tuesday, a moment after hailing his Supreme Court win. “Other countries, it’s called ‘I’m sorry, you can’t come in, you have to leave.’ This one, we have judges. They step on our land, we have judges, it’s insane. So we’re going to have to change our whole immigration policy.”
Asked specifically whether the Supreme Court ruling emboldened him to deport people without due process, Trump replied: “We have to find a system where you don’t need thousands of judges sitting at a border. Other countries look at us and they think we’re crazy.”
Yes, autocratic countries do tend to think due process is crazy.
The Roberts Court is historically unusual in that none of the justices ever held elected office; the experience gap contributes to an impression that they are naive about the way their decisions affect and distort the political system. This was painfully obvious in the travel-ban decision: The justices, scoring points as if in a debating competition, missed the big-picture impact their decision would have on discrimination generally and on the president’s shaky regard for the rule of law.
The legal test was whether a “reasonable observer” would think the travel ban reflected religious bias. Roberts believed not, because “the text says nothing about religion” and Trump’s order “is facially neutral toward religion.” He dismissed the many anti-Muslim statements Trump has made as “extrinsic statements.”
“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 the hell is going on,” the Trump campaign proclaimed.
Trump lawyer Rudolph W. Giuliani said his client had used the phrase “Muslim ban ” and had directed Giuliani to “show me the right way to do it legally.”
Well into his presidency, Trump’s website touted a policy of “preventing Muslim immigration,” and his spokesman said anti-Muslim videos retweeted by Trump were related to the travel ban. In April, Trump said he had “nothing to apologize for” in proposing to ban Muslims.
The U.S. Conference of Catholic Bishops didn’t find such things extrinsic, citing Trump’s “disparaging comments” and “repeated proposals to ban Muslims” in telling the court the travel ban is “blatant religious discrimination.”
But that’s not the view of the Roberts Court (or perhaps more accurately called the McConnell Court, after Senate Majority Leader Mitch McConnell successfully blocked a Democratic appointee from filling the seat now held by Justice Neil M. Gorsuch). This 5-to-4 conservative majority says the travel ban isn’t discriminatory because it doesn’t use the word “Muslim.”
By the same logic, the hypothetical mentioned in arguments by Justice Elena Kagan would be kosher: An anti-Semitic president could ban all Israelis from entering the United States, if he didn’t use the word “Jews.”
If the court applied the same “facially neutral” standard to segregation-era laws (rather than intent and impact), cities could ban people in black-majority neighborhoods from riding the bus, if the statute didn’t mention race.
Justice Sonia Sotomayor, in her dissent, found “stark parallels between the reasoning of this case and that of Korematsu”; in both cases, “the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.”
She cited Justice Robert Jackson’s dissent in Korematsu, in which he argued that, while the internment order itself was temporary, “once a judicial opinion rationalizes such an order . . . the Court for all time has validated the principle of racial discrimination.”
Now Roberts has validated religious discrimination. And his fig leaf of facial neutrality won’t stand up in the court of history.