Washington is filled with bright people kept busy in the task of finding a legal basis to enable Donald Trump’s biases and bad temper. The conservative majority of the Supreme Court has done its part with its ruling in Trump v. Hawaii, better known as the travel ban case.
To permit the president’s ban on travel from five predominantly Muslim countries, the justices had to virtually exclude widespread concern and strong evidence that it was crafted to fulfill the president’s often-stated desire to bar Muslims from entering the United States. Led by Chief Justice John Roberts, the five-member majority disposed of the obvious First Amendment concerns by giving precedence to the broad presidential authority to exclude immigrants who “would be detrimental to the interests of the United States,” as a 1952 law put it.
The justices decided to overlook Trump’s election-campaign contempt for Islam as outside the scope of his official duties, but they were hard-pressed to explain away continued evidence of that contempt following his inauguration. Nonetheless, they did, accepting the government’s argument that the travel ban was based on a rigorous compliance review rather than on the president’s view of Muslims.
Except that there is strong evidence the ban was crafted with the intent of finding a way to justify Trump’s discriminatory intent. Both Roberts’s majority ruling and Justice Sonia Sotomayor’s dissenting opinion note that a presidential adviser—not named, but it’s Rudy Giuliani—admitted this publicly. Roberts describes it:
In a television interview, one of the President’s campaign advisers explained that when the President “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ The adviser said he assembled a group of Members of Congress and lawyers that “focused on, instead of religion, danger.”
The kind of manipulation that Trump or Giuliani might have used to come out on top in New York’s 1980s tabloid gossip wars will work on the U.S. Supreme Court, it turns out. “But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification,” Roberts wrote.
It’s okay for government to discriminate against immigrants on the basis of religion as long as it can articulate some other justification for it. And, as Roberts wrote of Trump’s executive order, “The text says nothing about religion.”
That contrivance did not impress the U.S. Catholic bishops. “We are disappointed in the Court’s ruling because it failed to take into account the clear and unlawful targeting of a specific religious group by the government,” Archbishop Joseph Kurtz, chairman of the bishops’ committee on religious freedom, and Bishop Joe Vasquez, who heads the committee on migration, said in a joint statement.