On June 26, 2018, the Supreme Court issued its long-awaited decision in the Travel Ban case, Trump v. Hawaii. While the Court finally repudiated the Korematsu decision (which upheld the detention of Japanese-Americans during World War II), the majority also ruled in favor of the government, striking down the preliminary injunctions against the Travel Ban.
It is important that the Court did not dismiss the challenges entirely – instead, the cases will now return to the district courts in Washington, D.C., Seattle, and Maryland where those courts can decide whether the Travel Ban violated either the immigration statute or the constitutional prohibitions on religious discrimination. Now that the parties can turn to the merits of their claims, we expect even more vigorous litigation.
The justices divided sharply on whether the President’s repeated statements in which he openly expressed an anti-Muslim bias could be considered. The majority acknowledged some of the statements, but held that since the Executive Order (Proclamation) was “facially neutral,” there was no need to look into the statements made, either during the campaign or after the election.
Justice Sotomayor’s dissent took strong issue with this – she set forth an extensive list of these discriminatory statements, and stated that “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.” Justice Sotomayor also pointed out that the majority’s approach was inconsistent with the recent ruling in the Colorado wedding cake case: “Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant.” Thus, “unlike in Masterpiece … the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance.” Justice Sotomayor’s conclusion stated that while it was important to overrule Korematsu at last, “the court redeploys the same dangerous logic underlying Korematsu, and merely replaces one gravely wrong decision with another.”
Justice Kennedy wrote a very short concurrence, noting that while “there are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” they were still obligated to “adhere to the Constitution and to its meaning and promise.”
