Yesterday the Supreme Court upheld the third version of President Trump’s travel ban. Although the majority opinion by Chief Justice Roberts speaks the technical language of standards of review and judicial deference, in the long run it deserves to be regarded as a shameful act of cowardice. Trump v. Hawaii may not become so infamous as Dred Scott v. Sandford, Plessy v. Ferguson, or Korematsu v. United States, but it nonetheless warrants condemnation.
In the course of invalidating a coerced confession nearly 70 years ago, Justice Frankfurter wrote that “there comes a point where this Court should not be ignorant as judges of what we know as men.” The five men who composed the majority in yesterday’s ruling failed that test. Everyone knows that Travel Ban 3.0 never would have come into existence but for Donald Trump’s clear and repeated expressions of anti-Muslim animus.
Yet for all of the harm that this ruling will do, it contains a number of silver linings.
No Jurisdictional Bar
As it reached the Supreme Court, the travel ban litigation posed two fundamental questions: Did the ban fall within the president’s statutory authority? And even if so, did it violate the First Amendment’s Establishment Clause because it reflected anti-Muslim animus?
In addition, the case implicitly included various avenues by which the Court might have ducked the merits using procedural doctrines. By reaching the merits, the Court left open the possibility of future litigation challenging allegedly unlawful policies at the border.
The government argued that the plaintiffs’ statutory claims could not be adjudicated because of the “doctrine of consular nonreviewability.” The Court made short work of this objection. Pointing to a concession by the solicitor general during the oral argument, Chief Justice Roberts treated the consular nonreviewability doctrine as part of the government’s case on the merits, rather than as a jurisdictional bar. And on the merits, although the Court gave the president extreme deference—indeed, in my view, too much deference—it left open the possibility that in a future case involving a different statute, the president’s immigration policies could be ruled beyond his authority.
The Court made a similar move with respect to the Establishment Clause. In a concurrence, Justice Thomas cited a case holding that foreigners outside the United States lack Fourth Amendment rights as one of several grounds that he thought sufficient to defeat the plaintiffs’ claims. But the majority opinion tacitly rejected that approach, at least insofar as standing is concerned. Chief Justice Roberts wrote that “a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact,” thus creating standing for people already in the US. And the Court went on to consider the merits of the Establishment Clause challenge.
Korematsu Officially Overruled
Another silver lining of the ruling was the long-overdue official overruling of Korematsu—which upheld the exclusion of persons of Japanese ancestry, including US citizens, from their west coast homes during World War II. Although Korematsu has been widely condemned, the Court had never formally overruled it. Until yesterday. Quoting Justice Jackson’s dissent, Chief Justice Roberts took “the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’ ”
To be sure, if the express overruling of Korematsu is a silver lining, it came with its own dark cloud. Chief Justice Roberts thought that Justice Sotomayor was wrong to compare Trump’s travel ban with the Japanese exclusion order, because the latter was “solely and explicitly on the basis of race,” while the travel ban is “a facially neutral policy denying certain foreign nationals the privilege of admission.”
However, that characterization overlooks the fact that the justices who decided Korematsu also disclaimed any illicit motivation on the part of the Roosevelt administration, pointing instead to nationality and national security, just as the Trump administration did in defending the travel ban. Justice Black wrote for the Court: “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire.”
History repeats itself, first as tragedy, then as more tragedy.
Justice Sotomayor’s dissent discusses the overwhelming evidence of Trump’s animus at great length, which is hardly surprising. More interestingly, Chief Justice Roberts also acknowledges the powerful evidence of illicit bias.
Indeed, the majority opinion subtly denounces Trump’s motives, first by comparing his statements unfavorably with the more generous statements of his predecessors, and then by adding that the issue before the Court “is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” By saying that the issue is not whether to denounce Trump’s statements, the Chief Justice can be read to mean that if that were the issue, he would denounce them.
Equally subtly, Justice Kennedy, in concurring, indicates that Trump’s statements are not simply worthy of denunciation but render the policy affirmatively unconstitutional, even if the Court lacks the authority to invalidate it. To use a term coined by Professor Lawrence Sager, Kennedy indicates that the limits the Establishment Clause places on presidential action will be “under-enforced” by the judiciary in the area of immigration. He writes that “the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”
Here too, however, the silver lining reveals a cloud. The justices who subtly denounce the president’s words while upholding his actions resemble Republicans in Congress who condemn Trump’s most outrageous positions but ultimately enable his policies. And unlike GOP senators and House members, the justices lack the excuse of a possible primary challenge.
There is, in the end, one silver lining that comes without any dross. As Professor Leah Litman writes on Take Care, the principles of judicial deference that underwrite the Court’s travel ban ruling leave it open to The People to hold our elected officials accountable for their actions. Litman suggests a kind of shunning of—or at least not rewarding—those officials who participated in creating and defending the travel ban.
That’s one kind of accountability, but there are also others. Most obviously, people who oppose the travel ban should work to elect senators, House members, and eventually a president who will reverse Trump’s policy.
Beyond that, we should not overlook the extent to which Trump has already been held accountable. In response to the Court’s ruling today, the president tweeted: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!” That declaration of victory is hardly surprising, coming from a man who celebrates as a great contribution to world peace his own utter capitulation to a brutal dictator to avert a nuclear confrontation mostly of his own making.
Yet, as the president’s prior tweets show, the travel ban that was upheld today was a watered-down version of his original executive order. It was watered down because lawyers, law students, cab drivers, and others flocked to airports to assist stranded travelers during the earliest hours of the chaotic rollout of Travel Ban 1.0. In the face of that dramatic confrontation and rulings by lower federal courts, the administration backed down twice. The homework that went into a scaled back Travel Ban 3.0 was as much a product of anti-Trump activism as it was the administration’s druthers.
Moreover, the airport activism combined with the enthusiasm of the Women’s March to galvanize the resistance to Trump. Fatigued as we may all be by Trump’s repeated provocations, that resistance was on display in the last couple of weeks when, once again, Trump was forced to retreat somewhat from one of his most outrageous immigration policies—this time involving the separation of undocumented immigrant children from their parents.
To be clear, Travel Ban 3.0 and the current Trump approach to undocumented minors are abominable policies. But the fact that they are less abominable than they were is directly attributable to engagement by The People. To move from “less abominable” to something resembling “decent and honorable” will require further engagement, especially at the polls. Yesterday’s ruling was not the final chapter in the saga of the travel ban.