If the arc of justice still hovers over our beleaguered society, Tuesday should be remembered as the day on which the Supreme Court abandoned any pretense of being an independent body faithful to the high standards that the Constitution presumes its majority will follow.
In upholding the latest iteration of President Donald Trump’s travel ban, the court majority outdid itself in demonstrating its fundamental sophistry in the pursuit of partisan interests.
The court’s integrity has long been under suspicion, notoriously since its Bush v. Gore decision in 2000 to prematurely halt the recount of votes in Florida by its tortuous reading of a statute that provided them the cover to put party above country.
Too many subsequent decisions of the Republican-controlled court, particularly those involving women, labor, guns, campaign financing and consumers have followed suit, none more egregiously than Trump vs. Hawaii. The majority chose to ignore the nakedly bigoted comments about Muslims that Trump persistently made, from his first days as a candidate until his promulgation of the ban as president.
In his opinion for the majority, Chief Justice Roberts speciously distinguished between the “statements of a particular President” and the “authority of the Presidency itself.”
It was not “the Presidency” that was invoking this authority, but a very particular president, Trump, whose demonization of Muslims and slandering of Islam has made all too clear, to those who really want to know, that the intent of the travel ban was to punish Muslims, not keep the country secure.
The chief justice noted that the administration has provided sufficient evidence of national security concerns to justify its ban on immigrants from the seven countries. Yet actual terrorist acts committed in this country by persons from the five Muslim countries on the list were clearly not part of the “evidence” since no such acts have been committed by anyone from the five countries over the past two decades.
Indeed, the Trump administration could have found Muslim countries whose emigrants to this country have been guilty of such acts (Saudi Arabia, for one), but these happen to be places in which the Trump Co. has business investments. Money, it seems, sets certain boundaries, even for politically-motivated bigotry.
Justice Sonia Sotomayor appropriately found the national-security rationalization nothing but a masquerade for religious bias.
Ironically, the majority based their recognition of the president’s vast authority to regulate immigration on the “plenary-power doctrine.” As the legal scholar Leah Litman has noted, the court established that doctrine in ruling on what became known as the Chinese Exclusion Act in 1889. In that ruling, the court warned of “foreigners of a different race in this country, who will not assimilate with us” and “be dangerous to its peace and security.”
That was the pretext for the carte blanche they gave the chief executive in dealing with immigration in the late 19th century when racism against Asians was rampant. The Roberts court honored that precedent yesterday in its ruling affecting Muslims, a group equally reviled by too many present-day Americans.
Its repercussions will be no less damaging to this country’s core values and its security.
Sen. Mitch McConnell: Tweet the photo of yourself with the justice you stole a seat for. Show us just how shameless you are about what you have wrought.
Robert Emmett Curran of Richmond is professor emeritus of history at Georgetown University.