Undermining the First Amendment


Decades after it validated the shameful internment of Japanese Americans during World War II, the U.S. Supreme Court has finally overturned its ruling in the case of Korematsu v. United States.

Sadly, though, that welcome move comes in the context of its 5-4 opinion that upheld President Donald Trump’s ban on travel from several Muslim countries. As Justice Sonia Sotomayor rightly said in her dissent, the court’s move “merely replaces one gravely wrong decision with another.”

The latest ruling from the sharply divided court approves Trump’s third attempt to limit immigration from Muslim countries with no valid justification for the action. With fallout continuing from the White House’s policy to separate immigrant families, then its about face in the wake of a widespread backlash, the court’s ruling will further fan flames that are certain to heat up this fall’s midterm elections.

In his majority ruling, Chief Justice John Roberts attempted to maneuver around Trump’s loud and long complaints about immigration and crime, a red herring issue that helped him win the White House in the first place. Instead, the court’s opinion tried to hew to a strict and narrowly drawn legal justification for its reasoning: presidential power.

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“The issue before us is not whether to denounce the statements,” Roberts wrote. “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. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

And in dismissing the court’s earlier endorsement of the resettlement of Japanese Americans in wartime, Roberts also rejected any effort to link that case with the Trump travel ban.

“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” he wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”

But the travel ban is hardly neutral, and the case is far from simply one of denying certain immigrants the ability to enter the United States. The president has openly and clearly configured the ban to target people from predominantly Muslim countries, without regard to individual records or beliefs. The ban contradicts one of the bedrock principles of the Constitution’s guarantee of freedom of religion.

Sotomayor’s dissent forcefully states that view, from its opening sentences:

“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.”

Most Jewish groups that reacted to the majority’s ruling echoed that concern. 

“Scapegoating people of one religion, restricting their travel, separating families across international borders – the Jewish community has seen this before, and we must raise our voices now,” wrote Stosh Cotler of the group Bend the Arc. 

“We know that this policy of discrimination is part of this administration’s larger effort to target Muslim people, surveil their communities, turn them away from our country, and deny them professional opportunities and access to their families. History will judge this ruling harshly.”

Jonathan Greenblatt, national director of the Anti-Defamation League, said:

“Today’s decision will be recalled as a dark and shameful stain on America’s history reminiscent of other times when America turned against our highest ideals of equality, liberty and justice. The President’s Muslim Ban is plainly discriminatory, inhumane and un-American and betrays the President’s oath to uphold the Constitution.”

The Zionist Organization of America took the opposite tack, backing the ban because it took aim at what it saw as potential enemies of the United States. It had filed an amicus brief on the side of the White House, with its president, Morton Klein, explaining:

“The six Muslim majority countries affected by the proclamation are marked by combat zones, and infested with terrorist groups and sympathizers. The proclamation’s vital purpose exemplifies our most fundamental, overriding value of protecting American lives.”

Protecting American lives is crucial, of course, but that goal must be balanced against the ideals and principles that make this country one that attracts people from all over the world. 

With the court’s ruling on the ban followed quickly by its decision undermining public-sector unions and the right to abortion, then the retirement announcement by swing Justice Anthony Kennedy, news from the Supreme Court last week was bleak. How many more basic American freedoms are vulnerable now?