Senior Scholar Noah Feldman commented yesterday in Bloomberg News on the U.S. Supreme Court “travel ban” case, Trump v. Hawaii, calling the Court’s 5-4 decision to uphold the Executive Order restricting immigration to the U.S. of citizens from seven countries—most of which are predominantly Muslim—”a decision that will live in infamy.” He had previously suggested that “Justice Elena Kagan has a plan to end Trump’s travel ban.” But Feldman noted yesterday that Justice Kagan “joined [pragmatist Justice Stephen Breyer] in a more cautious dissent focused on the system of exemptions that the executive order permits … [which, if used] would lend some credence to the idea that the ban was actually motivated by national security.” Feldman took issue with this approach: “Unfortunately, the wrongness of the travel ban lies as much in its symbolic effect as in its exclusion of people from five Muslim-majority countries. This wasn’t the right case for Breyer and Kagan to be quite so pragmatic.”
Related to Islamic law, the Executive Order bans immigrants from mostly Muslim-majority countries on grounds that falsely conflate Islam and Muslims with notions of sharīʿa or jihād as inherently violent. For example—as noted by counsel, lower-court judges, and the Justices who did not prevail—the presidential campaign statement initially calling for the ban falsely proclaimed that “Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.” Chief Justice John Roberts wrote the majority opinion upholding the Order. In it, he focused on the “broad” and “ample” scope of presidential authority to regulate matters of national security and foreign affairs under the Constitution and under the Immigration and Nationality Act. But the Court did not reach the Establishment Clause claim. In dissent, Justice Sonia Sotomayor took up the Establishment Clause claim and, as noted on SCOTUSblog, “lamented that the Court had ‘blindly’ endorsed ‘a discriminatory policy motivated by animosity toward’ Muslims.” Rather than deferring to the President on a light-touch “rational basis” review, the majority should have assessed the Order more critically according to the dissent; that is, the Court should have applied the “strict scrutiny” standard that governs official religious discrimination. Justice Sotomayor reasoned that the explicitly discriminatory call for “a total and complete shutdown of Muslims entering the United States” was subsequently laundered into an Order “putatively based on national-security concerns” that she, joined by Justice Ruth Bader Ginsburg, argued failed to erase the Order’s taint, given that it was contaminated from the beginning “by impermissible discriminatory animus against Islam and its followers.” Also notable about this case: the Court finally condemned the 1944 Korematsu decision, which upheld wartime internment of Japanese-Americans, as immoral and wrongly decided on the day it came down. But Justice Sotomayor’s dissent condemned the decision on those very grounds, comparing this case to the 1944 decision, noting that the majority “merely replaces one ‘gravely wrong’ decision with another,” and prompting legal commentators to deem this decision “A New Korematsu.” For further commentary, see the SHARIAsourceBlog in the coming weeks.