This week the Supreme Court was asked to stand up for the rights of the vulnerable against the biases of the powerful — and failed, not once, but three times. Conservatives on the bench prevailed each time, ruling against Muslims, women, and public sector workers.
In Washington DC, San Diego, and cities around the country opponents of the administration’s travel ban took to the streets to express their disapproval of the ruling in Trump v. Hawaii. Comparisons with earlier wrongful rulings, like the Dredd Scott case upholding slavery were made in speeches and rallies, mostly near Federal buildings.
The mood at the demonstration in downtown San Diego was one of profound sadness and determination. It was, in many ways, more powerful than much bigger protests I’ve attended in past decades.
A California law requiring faith-based crisis pregnancy centers to notify patients of the state-offered subsidized medical care, including abortions, fared poorly with the justices. While the court did not directly strike down the entire California law, it sent the case back to lower courts with instructions to immediately block the enforcement of key provisions.
The expected Supreme Court ruling in Janus v. AFSCME means the entire U.S. public sector will now be “right to work,” and the political ramifications will be felt for years to come. And there was an additional knife in the back for unions buried in the decision: it also says that union membership has to be opt-in, rather than opt-out.
There will be more analysis and commentary on the pregnancy center and public employee union decisions in the coming days; today’s column focuses on reaction to the travel ban ruling.
The decision in Trump v. Hawaii allows travel restrictions to remain in place against Syria, Iran, Yemen, Libya, and Somalia, as well as limited sanctions against Venezuela and North Korea. The third iteration of Trump’s travel ban has already been in place since December 2017, after the justices allowed its implementation as the case was heard.
A one-word statement. An omission from Justice Sonya Sotomayor’s dissent (with Justice Ruth Bader Ginsburg) gives an idea of just how strong emotions were at play as the court heard the case.
(I’ve broken it into paragraphs to make it easier to read because you should read it)
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.
Normally, the opening paragraph of a Justice’s response ends with “respectfully, I dissent.”
The Supreme Court ruling came as no surprise to progressive and religious organizations, who released statements calling for public resistance against the travel restrictions almost immediately after the decision was announced.
A coalition of nearly 24 advocacy groups demonstrated outside the Supreme Court on Tuesday afternoon, including the Council on American Islamic Relations (CAIR), the Justice for Muslims Collective and the Muslim Public Affairs Council. Other civil rights groups also joined the protest, including the American Civil Liberties Union (ACLU) and Public Citizen.
From NBC New York:
Immigrant-rights activists crowded into the park across the street from the federal courthouse in lower Manhattan on Tuesday to voice their dismay at the decision.
Protestors chanted, cheered, and held signs saying “No ban, no wall.”
The crowd included those who are separated from family as a result of the ban, which covers people from five countries with predominantly Muslim populations: Iran, Libya, Somalia, Syria, and Yemen as well as North Korea and some Venezuelan government officials and their families.
Khulood Nasher has been trying to bring her sons from Yemen for the past four years. She says “today, we were broken.”
In the original announcement of the travel ban, the administration sought to characterize it as a temporary measure, in place until standards and practices for vetting immigrants from the affected countries could be improved.
Version three of the ban also says it is temporary and gives the Secretary of Homeland Security twenty days to compile a list of countries not meeting US standards for entry.
Nancy LeTourneau at Washington Monthly points out the obvious:
That 20 days was over on March 26, 2017—15 months ago. What’s up with that?
This so-called “temporary pause” to allow the secretary of homeland security to make lists and develop procedures for extreme vetting seems to have turned into something more permanent. Did John Kelly and his successor Kirstjen Nielsen fall down on the job? Have they been too busy implementing Trump’s “deport ’em all” and “zero tolerance” policies to get to this one? Or was the idea that the travel ban would be temporary simply another lie among the thousands this administration has told?
The people and countries impacted by the travel ban have known all along that a) it wasn’t temporary b) it was really about keeping Muslims out of the country.
From the New York Times California Report:
In the west Los Angeles neighborhood known as Little Tehran, immigrants from Iran were digesting the news over small cups of thick black coffee Tuesday morning. Many said they were not surprised to hear that the court had sided with the president, which they saw as a sign that he wielded far more authority than his predecessors.
“He’s like the dictators he attacks but says he admires,” said Sam Sassourian, a 72-year-old retired engineer who emigrated from Iran in the 1980s. “We love this country, but it is becoming more like the one we escaped from. This is not right and yet nobody can stop it.”
One argument the Trump administration made to the Supreme Court this spring to prove the legality of its travel ban on several majority-Muslim countries was that it had a robust waiver process that would allow people in on a case-by-case basis.
But new State Department statistics released on Tuesday show that U.S. consular officers issued waivers to the ban in only 2 percent of visa applications over the course of nearly five months.
In downtown San Diego Tuesday evening, about 300 people attended a rally in front of the Federal office building on Front Street.
Speakers appeared against a backdrop of poster-sized facsimiles of passports from the affected countries. The speeches were short, passionate, and powerful. It was also the most diverse demonstration in terms of crowd makeup I remember attending in San Diego.
The local chapter of the Council for Arab-Islamic Relations, the Partnership for the Advancement of New Americans and Pillars of the Community were the organizers of the demonstration.
From the Union-Tribune:
Susanne Arani, senior civil rights attorney for CAIR San Diego, said she and other attorneys would fight the travel ban.
“So what is the good news?” she said. “The Muslim ban opinion has never and will never reflect American core values of tolerance, respect and equality under the law.”
Imam Saad Eldgwy lead a prayer during the demonstration.
“Nothing matters before God except values, piety and integrity,” he said. “May God bless you, and bless the United States of America.”
A Washington Post op-ed by David D. Cole, national legal director at the American Civil Liberties Union puts the essential wrongheadedness of the Supreme Court’s decision in context with past poor judgments:
In Dred Scott, the Supreme Court in 1857 struck down a statute prohibiting slavery in the northern territories, saying that “the right of property in a slave is distinctly and expressly affirmed in the Constitution,” and that African Americans had “no rights which the white man was bound to respect.” The decision treated human beings as property and denied Congress the power to ban slavery in the territories.
In Korematsu , the Supreme Court in 1944 upheld President Franklin D. Roosevelt’s internment of Japanese American citizens and noncitizens of Japanese descent against a challenge that it unconstitutionally discriminated on the basis of race and national origin. The court wrote: “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented merely confuses the issue. . . . There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.”
In fact, there was no such evidence, and the court simply deferred to unwarranted aspersions cast on an entire segment of the U.S. population by the military.
In Trump v. Hawaii, there was overwhelming evidence that Trump’s ban targeted Muslims. As a presidential candidate, Trump called for “a total and complete shutdown of Muslims entering the United States,” because, he asserted, “Islam hates us.” He explained that he would do so by using territories as a proxy for religion, because “people were so upset when I used the word Muslim.” One week after taking office, he did just that. In case there were any doubt, he said in an interview with the Christian Broadcasting Network that day that the order would give priority to Syrian Christians over Muslim refugees.
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