A Masterpiece of Shame: The Supreme Court’s Muslim Ban

Avidan Cover is a Professor of Law and Director of the Institute for Global Security Law and Policy at Case Western Reserve University School of Law.

The Supreme Court’s opinion on Tuesday upholding the Muslim ban will go down as a shameful chapter in our nation’s judicial history. But as with the election of Donald Trump, we should have seen this coming. The Court’s stamp of approval of President Trump’s religious hatred has its antecedents in judicial conservatives’ longstanding efforts to expand presidential power and a disturbing antipathy toward Arabs and Muslims.

The notion of a powerful president has been around since the founding, but the 9/11 terrorist attacks revitalized support for the view that executive action often does not require congressional authorization and should not suffer judicial interference.

Most infamously, President George W. Bush’s lawyers argued that prosecuting interrogators for torture “would represent an unconstitutional infringement of the President’s authority to conduct war,” and that Guantanamo detainees could not access courts.

The Court has repeatedly justified its minimalist and highly deferential review in the national security arena by contending that the judiciary lacks the necessary competence and expertise to examine these complex questions. Invoking these rationales, the Supreme Court held that immigrants detained and abused in the immediate aftermath of the 9/11 attacks could not sue executive-branch officials. And the Court similarly held that criminalizing the mere teaching of law for peaceful purposes to a designated foreign terrorist group was legal, and did not violate the First Amendment right to freedom of speech.

Hurtful assumptions about Muslims and Arabs add a toxic element of inevitability to the mix. In a case concerning brutal roundups after the 9/11 attacks, the Court characterized the government’s detention of a non-Arab Pakistani man as part of a legitimate and “common sense” policy aimed at arresting and detaining Muslim Arab immigrants, casting aside claims of discrimination. Dissenting in another case that afforded minimal judicial review to Guantanamo detainees, Justice Antonin Scalia warned the holding would cost American lives and that “America is at war with radical Islamists.”

The Muslim ban decision is thus no aberration. It reflects the same obeisance to the president that the Supreme Court has exercised time and again when addressing issues relating to national security and Muslim and Arab immigrants.

To be sure, the Court knew that President Trump provided a challenge. An apologist vein courses through the opinion’s otherwise muscular defense of presidential power. Chief Justice John Roberts acknowledged a smattering of Trump’s vile statements (“Islam hates us.”). By cataloguing Trump’s bigoted calls for a ban on Muslim immigration, the majority acknowledged the proclamation’s dark provenance.

But the Court then determined it should “consider not only the statements of a particular President, but also the authority of the Presidency itself.” Seeking a deferential path, the Court refused to consider how a reasonable observer would perceive the proclamation’s ban on the entry of 150 million Muslims worldwide and instead applied a highly deferential rational-basis test. The Court then improperly accommodated the proclamation’s abject bigotry and rationalized the proclamation based on dubious security pretexts.

The Court’s disregard for the president’s animosity toward Muslims is especially jarring given its recent views on other faiths’ mistreatment. Only 17 days earlier, the Court held in Masterpiece Cakeshop that stray remarks by two State civil-rights commissioners reflecting religious animosity resulted in a violation of a Christian baker’s rights under the Establishment Clause. Dubious national security claims do not satisfactorily explain the distinct treatment of Christian and Muslims’ claims of government anti-religiosity.

This is not simply deference. It is an abdication of constitutional responsibility. The “anxious world,” which Justice Anthony Kennedy frets over in his mea culpa of a concurrence (and disturbing coda to his judicial tenure), can only surmise from the Court’s embrace of the Muslim ban and its disregard of the Establishment Clause that today’s United States hates Islam.

Seeking to expiate the Court’s guilt, the majority ends its opinion by insisting that Korematsu — which upheld Japanese Americans’ internment — “has nothing to do with this case” and repudiates the 74-year-old ruling.

But both cases champion slavish deference to executive actions that violate minority groups’ civil rights in the name of national security. The majority opinion now “lies about like a loaded weapon,” as Justice Robert Jackson warned in Korematsu, affording presidents great latitude to employ racism and religious animus in crafting national security and immigration policies. While overturning Korematsu, the Court has delivered another disgraceful opinion, one that must not persist for another 74 years.