Ten years ago this week the five conservatives on the Supreme Court ignored the facts about the drafting of the Second Amendment and found in its addled language an individual right to bear arms. Five years ago this week the five conservatives on the Supreme Court ignored the facts about voter suppression in the South and gutted a key provision of the Voting Rights Act. This week, the five conservatives on the Supreme Court ignored the racist underpinnings of the Trump administration’s travel ban, and compelling, documented evidence it already is being misapplied, and nonetheless endorsed it.
The Court’s 5–4 decision in Trump v. Hawaii is as disappointing as it is unsurprising. It is unsurprising because both the Constitution and Congress have granted the president, any president, even a president like Donald Trump, vast authority over immigration, so the White House enjoyed a clear precedential advantage from the start. An executive order in this area must be really awful to be struck down by the judiciary. It became clear months ago, as each iteration of the ban became less awful, and especially after oral argument this spring, that there was enough in it for a compliant justice to embrace.
“Neutral on its face,” is how Chief Justice John Roberts described the executive order. But any living, breathing human being who has been following this saga knows that’s not the whole story or even the most significant part of the story. Travel Ban 3.0 may be less awful than its predecessors but it still is awful. It may be “neutral on its face” but it wasn’t neutrally conceived and it isn’t being neutrally applied. The fact that five justices were willing to ignore the discrimination that pervades the ban, to pretend that the administration’s bigotry dissolved with the drafting of the third executive order, is what makes this decision so disappointing.
There is nothing conservative about a judge who ignores the realities of a dispute to achieve a desired ideological result. There is nothing noble about a ruling that pretends religious and racial discrimination is simpler than it is. And there is nothing admirable about what Justice Anthony Kennedy wrote in his brief concurrence in which he urged officials to “adhere to the Constitution and to its meaning and its promise” when this administration from its inception has demonstrated repeatedly its disdain for constitutional principles. If this is Justice Kennedy’s final run at the Court, it’s a lame end.
One could argue, and some already have, that you can’t square Kennedy’s vote for the travel ban with his vote against the gay Colorado couple deprived of a wedding cake. In Trump v. Hawaii, Kennedy’s vote is a vote to ignore the racist remarks by Trump and others that surrounded the ban’s development. But Kennedy’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission relied heavily upon the state’s “clear and impermissible hostility toward the sincere religious beliefs” of the baker who refused to make a wedding cake. Why exactly is one form of government bigotry indulged while the other condemned?
One could argue, and some already have, that the “rule of law” nonetheless prevailed because the current iteration of the travel ban was less bigoted and indefensible than its predecessors. I suppose in a sense that’s true. Each version of the ban, papered over by federal lawyers, refined by the lower appeals courts, became more palatable than its predecessor. Each drew the text closer to the model the Court’s conservatives needed to uphold it. But that’s cold comfort to the innocent condemned by the travel ban.
What the Court should have done in Trump v. Hawaii, given what we know about the way the travel ban is being implemented, was to call out administration officials for how they are enforcing the “neutral” ban and then remand the case to the lower courts for evidentiary hearings. If nothing else, such hearings would prove, or disprove, the persistent allegations that not only was the travel ban conceived with discriminatory purpose and intent, it also now is being enforced with discriminatory effect. That would have been the judicious way for this Court to act instead of what its majority did today.
One issue these hearings would explore is the extent to which the government grants waivers and exemptions. Justice Stephen Breyer noted in his dissent that a robust waiver system would rebut the notion that the ban “rests upon anti-Muslim bias rather than security need.” Yet, the evidence shows that in the first month of the ban, precisely two waivers out of 6,555 applicants were granted. That’s an acceptance rate of .03 percent. (Harvard’s acceptance rate is 4.6 percent.) Lately however, the State Department has gotten cute with its data. All that’s publicly available is the Department reporting “at least 809” applicants were cleared for waivers from December 8, 2017 through June 15, 2018. But without knowing the number of waiver applicants, it’s impossible to determine if this process is merely a “fraud” as one consular official asserted in an affidavit.
Always eager to put a little powder on the body once he’s committed the murder, the chief justice made a point of concluding that the Court’s notorious decision in Korematsu v. United States, in which the justices endorsed the internment of Japanese-Americans during World War II, was “gravely wrong the day it was decided.” It is possible, indeed likely, that future historians will say the same thing about Trump v. Hawaii, a case in which five justices stoically pretended that a racist policy of discrimination wasn’t really discriminatory after all because the agents of discrimination said so.
Image: Chief Justice John G. Roberts Jr., and Judge Neil M. Gorsuch in the Justices’ Conference Room, Supreme Court Building.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.