David D. Cole is national legal director at the American Civil Liberties Union.
Chief Justice John G. Roberts Jr., perhaps recognizing the disturbing parallels, sought to distance the court from this critique by declaring, nearly 75 years after the fact, that Korematsu “was gravely wrong the day it was decided” and that it has “nothing to do with this case.” But it has everything to do with this case: In Trump v. Hawaii, as in Korematsu and Dred Scott, the court was asked to stand up for the rights of the vulnerable against the biases of the powerful — and failed.
In a 5-to-4 decision, the court’s conservative justices wrote that even considering all of President Trump’s anti-Muslim statements about the ban, the order should be upheld as long as the court could imagine any plausible basis for it, applying the most deferential standard of scrutiny in constitutional law. In doing so, the court effectively closed its eyes to what the world sees and rubber-stamped a ban that effectively erected a sign at the U.S. borders reading “Muslims not welcome.”
In Dred Scott, the Supreme Court in 1857 struck down a statute prohibiting slavery in the northern territories, saying that “the right of property in a slave is distinctly and expressly affirmed in the Constitution,” and that African Americans had “no rights which the white man was bound to respect.” The decision treated human beings as property and denied Congress the power to ban slavery in the territories.
In Korematsu , the Supreme Court in 1944 upheld President Franklin D. Roosevelt’s internment of Japanese American citizens and noncitizens of Japanese descent against a challenge that it unconstitutionally discriminated on the basis of race and national origin. The court wrote: “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented merely confuses the issue. . . . 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.”
In fact, there was no such evidence, and the court simply deferred to unwarranted aspersions cast on an entire segment of the U.S. population by the military.
In Trump v. Hawaii, there was overwhelming evidence that Trump’s ban targeted Muslims. As a presidential candidate, Trump called for “a total and complete shutdown of Muslims entering the United States,” because, he asserted, “Islam hates us.” He explained that he would do so by using territories as a proxy for religion, because “people were so upset when I used the word Muslim.” One week after taking office, he did just that. In case there were any doubt, he said in an interview with the Christian Broadcasting Network that day that the order would give priority to Syrian Christians over Muslim refugees.
When that order and a second one were both blocked in court, Trump issued a third version, which also bars entry to North Koreans and certain Venezuelan government officials, but because almost none of them come to the United States anyway, virtually everyone affected remains Muslim.
Just a few weeks ago, the Supreme Court reminded us in Masterpiece Cakeshop v. Colorado Civil Rights Commission that the freedom of religion “bars even ‘subtle departures from neutrality’ on matters of religion.” The court warned that when there is “even slight suspicion” of animosity to religion underlying government action, all public officials “must pause to remember their own high duty to the Constitution and to the rights it secures.” Surely that “high duty” is greatest when the president himself has shown explicit religious intolerance. Yet the court openly abdicated that duty in a case with more evidence of religious animus than perhaps any other it has ever considered.
Had any other government official, in any other context, acted so openly out of animus against a particular religion, the court would swiftly and rightly step in to uphold the establishment clause. It did so on extraordinarily weak evidence of religious bias by a state civil rights commission functionary in Masterpiece Cakeshop. But in Trump v. Hawaii, the court reasoned that because the biased official is the president exercising his immigration authority, it should for all intents and purposes look the other way.
Mahatma Gandhi is believed to have said that “the measure of a civilization is how it treats its weakest members.” The Trump travel ban targets Muslims, here and abroad, separating their families and denigrating their faith. Yet just as in Dred Scott and Korematsu, the Supreme Court failed the ultimate test of justice. It bowed to the prejudice of the powerful when its duty was to protect the most vulnerable. Even as he repeated the court’s worst past mistakes, Roberts declared that Korematsu had been “overruled in the court of history.” So, too, will Trump v. Hawaii.