That a US Supreme Court would deliver a decision going against civil rights and protection of the weak and vulnerable should come as no surprise. After all, time and time again in this nation’s history the court has had the chance to act as a brake against government power and tyranny and has failed to deliver.
Whether it was Dred Scott, Plessy, or the Korematsu decision that they ironically overturned yesterday, the court has failed in real time to protect the rights of the minority against the tyranny of the majority.
However, if the court majority would rule against the rights of the minority, it would not do so without a fight. Justice Sonia Sotomayor delivered an unwavering dissent. As the New York Times described, she read, “The United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.”
The crowded courthouse fell silent.
Wrote the Times, “For the next 20 minutes, she remained resolute as she delivered an extraordinarily scorching dissent, skewering the court’s decision and condemning the ban as ‘harrowing’ and 
‘motivated by hostility and animus toward the Muslim faith.’”
She charged that the Supreme Court had failed to “safeguard that fundamental principle.”
In the dissent, joined by Ruth Bader Ginsburg, Justice Sotomayor charged that “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.
“The majority holds otherwise 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, many of whom are United States citizens,” she wrote.
“Ultimately, what began as a policy explicitly ‘calling for a total and complete shutdown of Muslims entering the United States’ has since morphed into a ‘Proclamation’ putatively based on national-security concerns,” the justices wrote. “But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.
“[D]espite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam,” the justices wrote. “Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers.”
The dissent finds “stark parallels between the reasoning of this case and that of Korematsu v. United States.
“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 dissent reads, “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
—David M. Greenwald reporting
The Supreme Court Ignores the Reality of President Trump’s Discriminatory Muslim Ban
By Cody Wofsy
The Supreme Court today rejected the challenge to President Trump’s Muslim Ban. In its 5-to-4 decision, the court failed to make good on principles at the heart of our constitutional system — including the absolute prohibition on official disfavor of a particular religion. The fight against the ban will continue, but the court’s decision is devastating. History will not be kind to the court’s approval of an unfounded and blatantly anti-Muslim order.
By now the story of this shameful policy is familiar. During his campaign, Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States” — which remained on his website until well into his term in office. That was hardly a stray comment. Rather, over and over, both before and after the election, Trump expressed his animus for Islam and Muslims and tied that animus to his proposed immigration ban.
Just one week into office, Trump attempted to make good on the campaign promise, issuing a sweeping ban on over a hundred million Muslims without even consulting the government’s national security experts. Courts rejected that first version as well as the order the administration crafted to replace it. Finally, those temporary measures were replaced by the current proclamation, which likewise bans over 150 million people — approximately 95 percent of them Muslim. As Justice Sotomayor explained in her dissenting opinion, Trump’s consistent messages and actions paint a “harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.”
Nonetheless, the court today rejected the constitutional challenge to the ban. Applying deference to the president despite the evidence presented, the court explained that it would “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” The court then concluded based on the record in the case that the ban had “a legitimate grounding in national security concerns, quite apart from any religious hostility.”
As Justice Sotomayor cogently explained, the majority could reach this conclusion only 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.” In this respect, as she noted, the case repeats some of the worst mistakes the court has made in the past. In particular, the parallels to Korematsu v. United States, the court’s 1944 decision upholding the incarceration of Japanese-Americans, are striking.
As in that case, the court today paid lip service to the vital constitutional values at stake, but it willfully ignored the reality of the situation. The majority today repudiated Korematsu, saying it “was gravely wrong the day it was decided.” But as Justice Sotomayor pointed out, then, as now, it was clear to those willing to look at the evidence that the government’s policy was not about safety but prejudice:
“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.”
Today’s decision is devastating. Whatever the court may have intended, the message it relays to Muslim communities around the country and around the world is that our Constitution tolerates transparent discrimination and animus against Islam. It undermines our standing to encourage tolerance and pluralistic democracy abroad, and it reinforces the intended message that Muslims — and immigrants, people of color, LGBT communities, and other marginalized groups — are not welcome in Trump’s America.
But this fight is not over.
Indeed, the greatest repudiation of Trump’s anti-Muslim policy to date was not delivered by any court. Instead, it was delivered by thousands of people spontaneously coming together at airports across the country to declare that we will not stand for hatred and discrimination.
Cody Wofsy is the Staff Attorney for the ACLU Immigrants’ Rights Project
Mitch McConnell’s and the GOP Senate’s blatant theft of a Supreme Court seat is certainly paying off. Same sex couples, pregnant women, Muslims, . . .. Who’s next?
Public sector unions
The Supreme Court decided that they are “pro choice” and that each person not the government should choose if they have to give money to a union and most of the people with “I’m pro-choice and I vote” bumper stickers go crazy…
So the Supreme Court disavowed Korematsu, a case based on racial discrimination, at the same time it supports the Muslim travel ban, discrimination obviously based on religion.
I wonder how many of the Supreme Court Justices actually believe Korematsu was correctly decided and would vote for it today?
The real question is not looking back into abstraction – it’s easy with the benefit of hindsight to ignore the passions of the day. The real question is if we had a present putting Muslims into internment camps if the SCOTUS would tell him no, and the answer based on history and the present, is no they would not.
I’m wondering if David thinks there is a difference between restricting travel to the US from Japan and Germany (that we did during WWII and most people think was a good idea) and putting Japanese living in the US into internment camps (that we did during WWII and most people think was wrong)?
We’re not at war with “Muslims” nor with any of the countries listed on the travel ban.
I’m wondering if Ken believes that Japanese internment was not so bad because at least we didn’t have death camps?
I’m wondering why David didn’t answer Ken’s question?
To answer David’s question I actually wrote a paper about how the internment of the Japanese was wrong as a junior High student 40 years abo where I visited a family friend who was interned at Tanforan in the 1940’s. Like most people I think that “death” camps are worse than “internment” camps but don’t have a problem with telling the ISIS foreign recruiting director that he can’t come to the US.
“We’re not at war with “Muslims” nor with any of the countries listed on the travel ban.” We are at war with North Korea.
No we aren’t. That was a UN resolution. South Korea and North Korea are still at war.
Knew friends whose parents grew up in either concentration camps or detention/internment camps… did you, David? You, Ken? I did/do…
Five.
The “travel ban” covers North Korea and Venezuela, this may come as a shock to Tia (and so many others that are calling it a “Muslim travel ban”) that North Korea and Venezuela are not “Muslim” countries (and probably have less Muslims than Davis)…
Yeah so 7 of 9 countries covered are Muslim but you want to insult Tia?
If Davis High School told 9 kids who had been causing problems that they were “banned” from attending football games in the fall and 7 were white, one was black and one was Korean would you call it a “white football game ban” (and would you consider it an “insult” if someone pointed out that the ban had nothing to do with race, but the fact that the kids were causing problems)?
Bonus question for David I’m wondering if he can think of even a single reason other than religious bigotry (against Muslims Buddhists, and Catholics) that someone would want to ban free travel from those nine countries?
If it was just a Muslim travel ban only Muslim countries would’ve been included.
Think really hard, Ken: why do you think the Trump administration added North Korea and Venezuela to the third version of this ban?
It’s not “just” a Muslim ban, but it’s primarily one. Plus adding other countries (especially North Korea which probably has zero people coming or close to it) gives them political cover and a legal claim that the policy is not discriminatory.
I wish Don and David would think…
“According to the Pew Research Center in 2010, there were 50 Muslim-majority countries. Around 62% of the world’s Muslims live in the Asia-Pacific region (from Turkey to Indonesia), with over 1 billion adherents.”
If Trump wanted to ban “Muslims” from the US, why not ban travel from all 50 countries (not 14% of them)?
I wish Ken would think… look how hard it was to ban just the 7. I’m wondering if Ken has ever heard of the concept of bang for the buck… it seems to apply here.
The whole thing began with this:
Tasked with implementing that, and aware of the complete chaos it would have created worldwide, his staff chose instead to implement a complete ban on people coming from seven arbitrarily chosen countries that were nearly 100% Muslim. That was overturned. They removed Iraq from the list and tried again. That was overturned. So they added North Korea, which was meaningless, and some specific restrictions on some Venezuelans.
“Only certain Venezuelan government officials and their families are affected, and those individuals are only barred from obtaining tourist and temporary business visas.” — ACLU
The US has been revoking tourist visas from Venezuela for months now due, apparently, to concerns about the thousands of people fleeing the chaos there and seeking asylum. But regular Venezuelans are not, in fact, banned from entry to the U.S. by the policy the Supreme Court ruled on.
So the addition of North Korea and Venezuela was basically meaningless in terms of practical effect, and was clearly designed simply to make the ban “not” a Muslim ban — despite the clear statement of Trump as to his intent.
I’m wondering why David has not bothered to answer my “Bonus question”:
“I’m wondering if David can think of even a single reason other than religious bigotry (against Muslims Buddhists, and Catholics) that someone would want to ban free travel from those nine countries?”
I’ll give David a couple hints al-Qaida & ISIS (who the ACLU say the US is at “war” with).
I’m no Trump fan and I dislike the US military and believe that we should bring 90% of our troops home and not piss off even more Muslims by trying to arm the people we like and kill the people we don’t like in their countries, but is pains me to hear David, Don and Tia (who seem smarter than average) post CNN/DNC talking points to try and bash the Orange Hair Crazy man without even thinking what they are posting is just wrong…
Ignorance.
Al Qaeda and its affiliates have operations in something like 30 countries. It is difficult to say exactly how many countries ISIS operates in, given the decentralized nature of the organization, but ISIS attacks have occurred in almost 30 countries as well. The travel ban did not correlate with any actual threat to our national security.
Don’t insult me, Ken.
I’m wondering if Ken realizes that even most bigots have reasons other than bigotry for their views
“true intent of the policy” People who create policy are often riddled with conflicts. Not sure where the “intent” comes from as almost any legislation or regulation could be disputed based on “intent”.
The addition of North Korea and Venezuela to the travel ban was specifically intended to make it pass the legal test. Evidently it worked. North Korea, of course, has zero people allowed to leave, much less immigrate to the U.S. Why we singled out Venezuela is anybody’s guess.
These countries are either sponsors of terror or their travel systems are a mess and prevent our national security functions from having confidence that people traveling from them to the US can be sufficiently vetted to ensure safety. The continued lie of the left that this is a Muslim ban… it provides a great political campaign meme for the right that Democrats don’t give a rat’s arse about safety over their politics.
For the record, Saudi Arabia has exported more terrorists than Iran.
I urge you to read the entirety of Justice Sotomayor’s dissenting opinion providing great detail on the true intent of the policy based on the explicit statements of Trump, which he has never disavowed, and those acting on his behalf.
https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
She concludes:
The court opined on this that it is unreasonable to take campaign speech to apply to an argument of the mindset of the President in opposition to a policy. You should support that opinion give the massive flip-flopping we tend to see from Democrat and establishment presidential candidates. If candidates say things to help them get elected, and what they say can be used to defeat future policy on the grounds that it can be used to read their mind as to their intent, then this will harm Democrats more than Republicans in the future. For example, Obama saying that marriage is between and man and woman to get elected.
Sure, but before 9-11 and all of our Homeland Security changes. Today Saudi Arabia has sophisticated systems to ID people that travel. And the current leadership of Saudi Arabia is America-friendly. Not so with Iran.
Sotomayor is very left leaning and an idealogue who doesn’t make her decisions according to the law but instead on her political beliefs. Not what a member of SCOTUS is supposed to do. The block of four almost alway vote lock step.
Say WHAT??? Donald J. Trump is going all Bob Dole on us and talking about himself in the third person?
I don’t think so.
Alan Miller said:
Think again:
https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?utm_term=.fd19efcfbce6
I squat corrected.
One thing for sure… with the string of latest SCOTUS decisions Trump has certainly added to his growing list of accomplishments supporting conservative views and interests. Republicans should be increasingly satisfied with his performance even as Wall Street and big business Republicans scream about global trade resets and the stop of the cheap immigrant labor flow from the southern border.
SCOTUS is back to being a true court and not a power cell for liberal activists.
Basically this case should have not had to go to SCOTUS if the lower courts had performed as courts and not as political action centers for the left.
Justice Tomas nailed it…
SCOTUS needs a case to address this problem. Obama plants are all over the federal court system doing political mischief. It was part of the strategy of the left to take over all institutions of power and influence. Thank God the people noted this and stopped it at least with respect to the highest legal power in the land.
Now Justice Kennedy is retiring and Trump has another chance to ensure SCOTUS stays remedied from the sickness of activism from the bench for decades to come.
To borrow from the illustrious Jeff M: Thomas is very right-leaning and an ideologue who doesn’t make his decisions according to the law but instead on his political beliefs. Not what a member of SCOTUS is supposed to do. The block of five almost always vote lock step.
I’ve long been able to make predictions about SCOTUS decisions that are significantly higher than random chance.
Am I an intuitive legal genius or has the court long been guided by political considerations?
Not really. At least two of the five that voted to overturn the activist lower court’s ruling have previously voted against conservative interests based on a basis of the law of the land.
However, the four that voted against it ALWAYS vote in lock-step with minimal consideration of the law of the land except when it suits their politics.
The LA Times writes:
“Congress adopted a provision in 1952 saying the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.””
I’m no legal scholar and I have no idea if this law would apply if the president was not a “he” but I think that it would be pretty clear to the average third grader reading the above “black letter law” that the president “can” restrict entry to the US. Since this is not in the Constitution it is also clear that Congress can take that power away without sending the issue to the courts.
Just to let Don know I don’t think Tump likes Muslims just like I don’t think he likes bald men or fat women. At the end of the day I think the “primary” reason for the ban is to make his base of WWE watching white Christians feel “safer” not to keep Muslims out because he hates them. You could argue that he wants to “build the wall” to punish fat women who will have to pay more to legal Lisa than illegal Maria to do their laundry but I think he is doing his “build the wall” act “primarily” to make his base happy (most lazy dumb white guys have never seen a crew of Latino guys working to put in a sprinkler system and don’t know that they could probably dig under “the wall” in about an hour and only know that they are “taking their jobs”).
We have all heard left of center female politicians make disparaging statements about “white men” (and rich older men married to good looking younger women) but when they pass something like a law that forces (mostly) white guys to pay for “diversity” or “sexual harassment” training for their employees I think that the “primary” reason is to make their base happy (and often get big campaign contributions from the firms doing the “training”) not a hatred of white men (some who may be married to women better looking and thinner than they are)…
So apparently you believe that Barack Obama, Hillary Clinton, Joe Biden, and Chuck Schumer also wanted the same? https://www.bostonglobe.com/news/politics/2017/01/26/when-wall-was-fence-and-democrats-embraced/QE7ieCBXjXVxO63pLMTe9O/story.html
Implementing a policy based solely on the religion of those you are applying it to is discrimination. It is based on the assumption that people who follow Islam are uniquely dangerous to America’s security. That belief is a form of bigotry.
The policy was discriminatory and it was based on bigotry. His statements revealed the bigotry. The Supreme Court apparently found that his bigotry did not mean that the policy in its third iteration was discriminatory, because I guess his bigotry did not govern his intent. Or something. Evidently Donald J. Trump can literally say anything at all. Adding North Korea (pointless) and Venezuela (in a very limited and meaningless manner) evidently provided sufficient cover for a discriminatory policy founded on bigotry. What he hates or loves is irrelevant. Bigotry isn’t necessarily about hatred. It is often grounded in ignorance.
What is amazing is the number of people who are making excuses for him.
You really need to stop talking about fat women.
It was not long ago when the pollsters told Barack Obama, Hillary Clinton, Joe Biden, and Chuck Schumer that “their” voters wanted border security (and didn’t want gay marriage), but today the polls are different (so their “views” are different). If polls of GOP voters said they wanted a wall on the Canadian border were afraid of people who said “eh” all the time Trump (like every politician who says what their voters want to hear and often makes voters on the “other side” cringe) would talk about a “Canadian Wall” and a “Canadian Travel Ban” since he wants to win a second term so he can pick the guys to replace Breyer and RBG…
Yet, there are times when they are needed… “firewall” (several applications), “storm walls” (again, several), “memorial wall” (several), etc.
There is also the “Wailing Wall”… I just hope we aren’t building that on the US southern border, where future generations, for either humanitarian, and/or financial reasons, wonder “what the hell were they thinking?”
Frost also points out that there is the axiom, “good fences make good neighbors”… back on the East coast, you often find fences that define property rights/control, but that the neighbors can step over, and/or sit on, and engage in “community”… just saying…
Oh, and for the uber-righties out there, I do believe in a rational immigration/visitation policy and enforcement of that… it has yet to exist and the politicians are suffering from too much RCI, or playing to their base (as others have rightfully pointed out) to “get ‘er done!”
BTW, suggest that https://www.poetryfoundation.org/poems/44266/mending-wall is a good read, on many levels…
Ken – I agree about the legal scholar part. This statute doesn’t give the president unfettered discretion to restrict entry to the U.S. It has to be demonstrated that the entry of the excluded aliens would be “detrimental to the interests of the United States.” If, instead, the claimed exercise of this authority was motivated by religious animus, not only would the statute be violated but also the proclamation would violate the First Amendment, which takes precedence over a statute.
I have to take some exception to this as Trump has been saying most of the same things for the last 20 years before he ran. https://www.youtube.com/watch?v=GZpMJeynBeg
Trump looks at illegal immigration as the US being ripped off.
Trump looks at terrorism from 9-11 as resulting in a tremendous cost to the country. As he was destroying ISIS (finally after Obama gave the caliphate dream life again) the national security reports were that they would become desperate for terror attacks on the US… and they would come from the countries having terrible record-keeping and defective systems for vetting the people that would come here.
It is unfortunate that he said what he said during the election, but people need to stop being so myopic, dense and disingenuous to use the words said by this imprecise speaking President and use it to claim they know his intent. From my perspective the only CLEAR intent is from those attempting to exploit every Trump word said for political war. Actions always speak louder than words.
It appears that the SCOTUS has set a precedent, that the current and future POTUS will like, and which will frustrate the beejeebers those on both the left and the right… given the precedent, any future POTUS can rescind the policy, and it would also arguably apply to any executive orders…
Like the ones the previous POTUS issued that many on the right were so incensed about…
The current traitorous potus is illegitimate and his followers dangerous criminals. They will eventually be dealt with by the people one way or the other. I’m hoping that he has the appropriate fear response and resigns before it is too late to avoid civil war.
You should not talk about Obama that way. Besides, that is so yesterday. No need for a civil war yet, as the republic has elections to rid ourselves of the crooked and incompetent. The need for civil war will be justified to combat those that turn to violence and malice only because they cannot accept the final legitimate election results.
“Meow”… several levels… can we discourse as adults rather than…?
I would prefer that.