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The Supreme Court ruled on Tuesday, June 26, 5-4, that the Trump administration’s travel ban targeting Muslim-majority countries is constitutional, largely because the administration picked the listed countries using criteria that were, on their face, race- and religion-neutral. Those criteria just happened to result in a policy banning entry from a number of Muslim countries (plus North Korea and Venezuela) and to come from a president who had repeatedly promised to bar Muslims from entering the United States.
The Court’s four liberals dissented. Justice Stephen Breyer’s dissent, which Justice Elena Kagan joined, is cautiously written, arguing that the case should be sent back to district court based on evidence that the policy is not being applied in a fair way.
But Justice Sonia Sotomayor, joined by her colleague Ruth Bader Ginsburg, went bigger and wrote an eloquent version of the “Are you fucking kidding me?” reaction a lot of observers will have to the majority’s naive acceptance of the Trump administration’s stated rationales for the policy. Sotomayor began as follows:
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 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. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 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. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
In Section B of Sotomayor’s dissent, she went into excruciating detail to show that Trump’s policy was motivated by bias against Muslims, largely by quoting Trump’s words and tweets. This ranged from his December 7, 2015, statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on” to his retweeting of anti-Muslim hate videos on November 29, 2017. She even explained “The Snake,” Trump’s favorite song to quote at rallies.
Sotomayor concluded:
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. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” promised to enact a “total and complete shut down of Muslims entering the United States,” and instructed one of his advisers to find a “lega[l]” way to enact a Muslim ban. The President continued to make similar statements well after his inauguration, as detailed above.
Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam. Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s law yers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint.
What’s more, the majority’s decision to ignore this evidence of anti-Muslim bigotry flies in the face of a high court decision weeks earlier in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case the majority’s decision depended in large part on its judgment that the Colorado Civil Rights Commission acted unconstitutionally by disparaging the religion of the cake shop’s owners.
“Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant,” Sotomayor wote. “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.’”
The upshot of the dissent is clear: President Trump is clearly, deeply bigoted against Muslims. This bigotry motivates his immigration policy. That is extremely relevant evidence when considering if the president’s immigration policy is unconstitutional due to religious bias, and the majority erred profoundly in disregarding it.
Most of the time, Supreme Court dissents end, “I respectfully dissent.” This time Sotomayor left off “respectfully.” That might not seem like a lot, but it’s a signal of how profoundly distasteful she finds the majority’s judgment.
