Amid the public outcry over President Trump’s family separation policy, the Supreme Court today cemented itself in the national conversation about how America treats foreigners. In a split 5-4 decision, the court let everyone who hoped that the justices would protect American citizens from the whims of Donald Trump know that it will do nothing of the sort.
The decision came in the case of the Muslim ban, also known as the travel ban, or more precisely, Proclamation 9645. Initially proposed during Trump’s campaign as a “total and complete shutdown of Muslims entering the United States,” the administration tried two different versions of the ban, ultimately settling on a third version that applied to eight countries that it claimed presented national security concerns: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.
After protests at the nation’s airports and elsewhere, lawsuits around the country were filed, with Hawaii’s case against the Trump administration ultimately making its way to the Supreme Court. Today, in an opinion written by Chief Justice John Roberts and supported by the four other conservatives on the bench, the court sided with President Trump and upheld the ban.
The court ruled that Congress has given the president broad authority to suspend entry into this country from other countries, and that the president’s proclamation was merely an exercise of that power. The court also said that the president is entitled to a presumption of constitutionality, and his anti-Muslim campaign and Twitter statements are not enough to overcome that presumption. The proclamation was deemed to have a legitimate basis – national security – effectively overriding any violation of the Constitution’s protections against religious bigotry.
That’s the basic synopsis of the legal reasoning, but the bigger picture here is more important. The court, in words from the chief justice, is saying loud and clear that it is going to treat President Donald Trump just like it would any other president. The fact that Trump has acted out of line with any previous understanding of what is “reasonable” for a sitting president means nothing to these justices.
This ruling dealt almost exclusively with Trump’s campaign statements and Twitter activity, but it’s not a difficult leap to think that these same justices will feel the same way about his self-serving mixture of politics and business dealings, his nepotism, his connections with Russia, his treatment of women, his other anti-immigrant policies, or even his winking white nationalism.
Still, the fallout from this case is not just how the court is going to treat the president in the future. The damage will also come from how emboldened Trump now after the ruling. As part of his statement in response, he called the ruling a “tremendous victory” and a “moment of profound vindication.”
To anyone following politics, this should come as no surprise. Trump will feel that he can do what he wants with all the presumptions normally accorded someone of his office, and the Supreme Court is not going to do much to stop him. While those of us who care about the abuses that can come from an unchecked executive have to hope that there will be cases down the line where that’s not the case, the truth is, Trump is going to take this decision and run with it.
Hopefully, today’s decision allowing Trump to act on his bigoted beliefs will be looked upon by history as an abhorrent mistake. Another case in the list of the Supreme Court’s most infamous decisions is Korematsu v. United States, the 1944 ruling that gave constitutional blessing to Japanese internment. Despite evidence proving the government lied to the court about the risk Japanese-Americans posed during World War II, and despite being a decision that has been roundly criticized from all quarters, prior to today, that decision was still law.
But after this morning, that’s no longer the case. Tucked into the end of the decision on Trump’s travel ban are two paragraphs from the court saying that 1) this case is not like Korematsu because there is no policy based on race or religion and that 2) Korematsu “was gravely wrong the day it was decided” and is now overruled.
Today’s decision is terrible in many ways, but overruling Korematsu is an unequivocal good. For those looking for something to be happy about today, there’s no doubt this small piece of the decision qualifies.