After much anticipation, the Supreme Court issued its decision in Trump v. Hawaii yesterday, upholding the Trump administration’s so-called travel ban—a culmination, in many ways of, of two years of legal machinations and litigation around the United States. The ban itself—stripped away of all context—is relatively innocuous; it represents the considered judgment of various government agencies that the United States restrict entry to individuals from countries that provide inadequate or inaccurate information about travelers. And the president, under legal authority granted by Congress, simply adopted this recommendation, imposing restrictions on travelers from eight countries who simply did not measure up to U.S. security standards.
So what’s the issue? The answer comes in two parts. The first is the evidence that the travel ban isn’t a run-of-the-mill policy; it is a Muslim travel ban that seeks to impose severe travel limitations based upon religious affiliation. Indeed, most of the countries on the list—Chad, Iran, Somalia, Libya, North Korea, Syria, Venezuela, and Yemen—are Muslim-majority countries. Moreover, during his campaign and then after taking office, President Trump made a number of statements indicating that his express goal was to limit or eliminate Muslim immigration. Maybe the most noteworthy, which came during the campaign, was the president’s published statement calling for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” And there were other statements, some from the campaign trail, others from after President Trump took office ,and yet others from his campaign advisers, all indicating that the travel ban was the implementation of an anti-Muslim immigration agenda.
The Supreme Court, in a 5-4 decision, adopted a legal framework that required sidelining this evidence, upholding the travel ban as a legitimate exercise of executive power. In so doing, the court leaned on previous decisions that had largely insulated the executive’s immigration decisions from constitutional challenge. For example, in 1972, the Supreme Court upheld government’s decision refusing entry to Ernest Mandel, a Belgian citizen who had been invited to speak at a conference at Stanford University. Mandel, however, was refused entry to the United States, which he believed was—at least in part—on account of his being a “revolutionary Marxist.” And such a decision preventing his presentation at a conference was alleged to violate the free-speech rights of the conference participants. But the court rejected the challenge, arguing that when the government gives a “facially legitimate and bona fide” justification for its decision, it is not the place of the courts to “look behind the exercise of that discretion.” And that 1972 standard, which the court applied yesterday, remains true even when someone alleges that the immigration decision violates a constitutional right.
To be sure, this new application of old case law may not be an apples-to-apples comparison—a point made by Justice Sotomayor in her dissent. Indeed, the travel-ban case certainly feels quite different than prior cases; it’s one thing to say you won’t “look behind the exercise of that discretion” when the executive gives Mandel a sparse justification and you worry something else unconstitutional lurks in the background; but it’s something quite different to say you won’t “look behind” when evidence of a constitutionally prohibited rationale is expressly provided by the president—a fact that could justify subjecting the travel ban to heightened judicial scrutiny.
The majority, however, embraced the equation and applied its old case law requiring deference to the executive. But not wanting to confuse upholding the travel ban with endorsing the president’s statements, the majority opinion conveyed a not-so-subtle critique, noting how past presidents had used their “extraordinary power to speak to [their] fellow citizens and on their behalf … to espouse the principles of religious freedom and tolerance on which this Nation was founded.”
Ironically, however, this language has been the source of some derision, which brings us to the second issue raised by yesterday’s decision. Earlier this month, the Supreme Court issued its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission—the case of the baker who refused to bake a cake for a same-sex wedding. The court ultimately found in favor of the baker because it concluded that the Colorado Civil Rights Commission had failed to adjudicate the case neutrally, instead evidencing in their word and deed hostility towards religion and thereby violating the religious protections of the First Amendment. Some critics of the court’s opinion in Masterpiece Cakeshop thought that evidence of this hostility was a bit thin—far thinner than the evidence of hostility proffered to the court in the travel-ban case. And for these critics, the assumption—or, maybe more accurately, hope—was that the court would apply the same searching scrutiny for religious hostility in the travel-ban case that it had when protecting the baker.
Now there are, of course, legitimate legal justifications for the court to treat the baker differently than the travel ban. There is legal precedent justifying, at least in some circumstances, affording heightened deference to the executive when he makes immigration decisions; no parallel legal precedent exists for a civil-rights commission that denigrates a religious claimant. But the timing of the two decisions certainly should give us all pause. It certainly did for Justice Sotomayor, who cited Masterpiece Cakeshop repeatedly in her dissent, highlighting what she saw as a fundamental incongruity between the two decisions. And for some, the fact that the court’s majority critiqued the president, but wouldn’t take the additional step of allowing that criticism to impact the legal outcome, has given the impression that when it comes to religious animus against Muslim immigrants—as opposed to Christian bakers—that they are all talk, but no action.
To be sure, that assessment is probably somewhat unfair. But context matters, especially for Supreme Court opinions that not only decide legal cases, but also send important moral signals about who we are as a society. In the end, the Supreme Court had a choice yesterday. Legal precedent could justify upholding the travel ban. But the court also could have decided that affirmative evidence of governmental discrimination was not acceptable—and that executive authority would be subjected to heightened scrutiny when the president makes explicit statements targeting a particular religious group. Breaking new legal ground is what the Supreme Court is for. And what better way to use that power than to state unambiguously that the United States will not tolerate hostility towards any religious group. Yesterday, unfortunately, the Supreme Court chose otherwise—and we are all worse off for it.
Michael A. Helfand is professor of law and associate dean at Pepperdine Caruso School of Law, visiting professor at Yale Law School, and fellow at the Shalom Hartman Institute.