Sotomeyer: Travel Ban Ruling ‘Merely Replaces One Gravely Wrong Decision With Another’


The Supreme Court voted to endorse open bigotry in a 5-4 decision today. Hiding under the Trumpian rubric of national security, the court decided that Donald Trump had ample statutory authority to impose his Muslim ban, but Sonia Sotomayor wasn’t buying into it. New York Times:

Justice Sonia Sotomayor delivered a searing dissent from the bench in which she accused the court’s majority of upholding an “openly discriminatory policy motivated by animus” to a religious minority.

Speaking at length from the bench as her colleagues in the majority sat stone-faced, Justice Sotomayor compared the court’s decision to the Koramatsu ruling that upheld the internment of Japanese-American citizens in concentration camps during World War II.

She noted with appreciation that the court’s decision in the travel ban case had for the first time explicitly overturned the Koramatsu decision. But in upholding the president’s travel ban, she said, the court “merely replaces one gravely wrong decision with another.”


The Trump litigation is, at its heart, a case about whether America’s borders are a civil rights-free zone. It is a case about whether the president of the United States can brag about his intention to violate the Constitution, brag about the specific pretext he will use to mask this violation in a thin veneer of legitimacy, and then get away with it because the president claims that he was acting in the interest of “national security.” […]

Trump will almost certainly read the decision as a green light to commit greater atrocities against immigrants. Though there are legal distinctions between the Muslim Ban case and the arguments supporting the family separation policy Trump implemented earlier this year, the Court’s history is riddled with cases where the justices turned their back on a marginalized group — and authoritarian actors treated that decision as a license to go buck-wild. […]

The Trump administration’s goal, in other words, appears to be a world where parents and children are warehoused together in federal detention facilities until they are convicted of a crime or deported to their home country.

If [now when] the Supreme Court upholds the Muslim ban, many lower courts are likely to read that as a signal that the nation’s highest court no longer wants them to pay particular heed to the rights of immigrants. The Trump administration, meanwhile, is likely to feel emboldened to push harsher policies. And Trump’s supporters — well, if history is any guide, there is a danger they could also feel emboldened to take matters into their own hands.

The court ruling is a political decision from a supposedly independent branch of government. This is a very dark day and these days have dawned before, unfortunately. Justice Felix Frankfurter said “National unity is the basis of national security.” In the Minersville School District v. Gobitis case, decided in 1940, two Jehovah Witnesses children were expelled from school for refusing to recite the pledge of allegiance because it was against their religious views. The court decided that “national cohesion” was a more compelling interest than freedom of speech or equal protection under the laws and upheld that children could be forced to salute the flag.

Gobitis now stands as the paradigmatic example of how the Supreme Court can turn its back on a vulnerable group — and unleash the wolves of authoritarianism in the process.

A lawyer who belonged to the faith lamented that hundreds of his fellow Witnesses were “beaten, kidnapped, tarred and feathered, throttled in castor oil, tied together an chased through the streets, castrated, maimed, hanged, shot, and otherwise consigned to mayhem.” […]

The story of Gobitis was a story of authoritarian elements within the general populace viewing a Supreme Court decision as a license to lash out at a disfavored minority group. […]

Trump v. Hawaii is a case about an authoritarian, anti-democratic president. And it is a case about a racist, who does not feel bound by the Constitution, and who likes to lash out at vulnerable immigrants.

There is no way that Trump, Stephen Miller and Jeff Sessions are going to take this Supreme Court decision as anything other than endorsement of their racist designs and empowerment to do more of the same. Sadly, that’s what history teaches us.

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