Chief Justice John Roberts is either a very stupid man, or he believes that the rest of us are very stupid.
In the first paragraph of Roberts’ opinion in Trump v. Hawaii, handed down on Tuesday, the Chief writes one of the most literally unbelievable lines to appear in a Supreme Court opinion: “the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks.”
If you believe that, you probably also believed President Donald Trump when he claimed that he’d replace Obamacare with “something terrific.” If you believe that, you probably slept through the entire 2016 presidential campaign.
For any of you who stopped paying attention in 2015, Trump repeatedly promised to ban Muslims from entering the country while he was a candidate for the presidency. Roberts’ 5-4 opinion in Trump acknowledges as much — it quotes Trump’s 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.”
But Trump did a whole lot more than that. Trump didn’t just brag about his plan to ban Muslims — he also bragged about the specific pretext he would use to create the false appearance that his Muslim Ban was actually something else. “People were so upset when I used the word Muslim,” Trump told NBC’s Meet the Press in 2016, “and I’m okay with that, because I’m talking territory instead of Muslim.”
Rudy Giuliani, a leading Trump adviser who now serves as Trump’s personal attorney, was even more explicit about what Trump was up to:
OK. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.
So, to summarize: Trump wanted a Muslim ban, but had concerns that the courts would balk at an explicit attempt to ban adherents of a particular faith from entering the country, so he formed a commission that told him he could mask his Muslim Ban as a ban on travel from the “areas of the world that create danger for us.”
And that’s what Trump did. Though the specific list of countries targeted by Trump’s ban have shifted across three versions of the policy, almost all of them are majority Muslim nations. The only two that aren’t — Venezuela and North Korea — appear to have been added as a pretext to distract from the ban’s anti-Muslim motive. Only a small number of Venezuelan officials and their families are subject the ban, and nearly no North Koreans travel to the United States to begin with.
Nor has the Trump White House been especially shy about its true motives — even after Trump became president. As Roberts acknowledges in his opinion, Trump “retweeted links to three anti-Muslim propaganda videos” last November. When Trump’s deputy press secretary was asked about these videos, the president’s spokesperson explained that “’the President has been talking about these security issues for years now, from the campaign trail to the White House’” and ‘has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.’”
Donald Trump has done everything short of publishing a book entitled How I’m Flouting The Constitution’s Establishment Clause By Prohibiting Muslims From Entering The United States. It’s unclear what else he could have done to make his motives clear.
And yet, Roberts writes on behalf of himself and his four Republican colleagues, none of that matters.
“’Any rule of constitutional law that would inhibit the flexibility’” of the President “’to respond to changing world conditions should be adopted only with the greatest caution,’” Roberts writes, “and our inquiry into matters of entry and national security is highly constrained.”
Indeed, Roberts’ inquiry is so constrained that it is meaningless. Though Roberts says that the Court may “consider plaintiffs’ extrinsic evidence” — by which he means the considerable evidence that Trump was motivated by animus towards Muslims — the Court “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”
To strike down the policy, Roberts continues, it must be “impossible to ‘discern a relationship to legitimate state interests,'” or the policy must be “inexplicable by anything but animus.”
Having forced the plaintiffs challenging the Muslim Ban to clear this titanic bar, the outcome of the case becomes obvious. The document laying out the current version of the Muslim Ban is “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices” and its “text says nothing about religion.” Also, the Trump administration claims that its ban is the result “of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”
If courts are required to credit any evidence that suggests the ban may be legitimate, while casting a jaundiced eye on evidence of Trump’s real motives, then it is easy to construct a narrative that makes the ban look legitimate.
In fairness to Roberts, the Chief does cite some evidence suggesting that Trump’s Muslim Ban is not very effective at banning Muslims. Among other things, he notes that “three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries.”
The current version of the ban is also the third iteration of the policy; the first two were scrapped after they fared very poorly in lower federal courts. That signals the ban is not so much as an effective measure to ban all Muslims than Trump’s attempt to weasel out of a political trap he placed himself in. Trump promised a “total and complete shutdown of Muslims entering the United States,” but soon discovered that he needed to come up with a way to disguise his plans if he wanted them to survive judicial review. Since other courts were nowhere near as credulous as the Supreme Court of the United States, Trump kept shifting his policy in a desperate effort to stay one step ahead of the courts.
The current policy, in other words, can probably best be explained neither as an effort to protect America’s national security nor as a ban on all Muslims, but rather as an effort to impose some symbolic harm on Muslims so that Trump can deliver on a campaign promise. That doesn’t make the ban constitutional — as Roberts acknowledges, “our cases recognize that ‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’” — but it does mitigate, somewhat, the impact of the ban.
Nevertheless, this case has profound implications for Trump’s opponents, and for anyone hoping to protect liberal democracy from an authoritarian president.
In progressive legal circles, it’s very common to hear lawyers saying thankful prayers that the courts are still there to protect our civil liberties from Trump. The head of one leading liberal lawyers’ group even published an essay labeling the judiciary “the Last Hope of the Left.”
If that’s true, then “the Left” better find another source of hope fast. The upshot of Trump v. Hawaii is that the Supreme Court of the United States will turn a blind eye even to Trump’s most obvious abuses. And the Supreme Court sits at the apex of the judiciary, with the power to reverse all other federal courts.
Tuesday’s decision is likely to embolden Trump even further. On several occasions in the Supreme Court’s history, the justices handed down a decision suggesting they would not protect a disfavored minority group — and authoritarian elements within American society followed up that decision with a campaign of terror.
Today, those authoritarian elements control the presidency itself. They’ve been separating immigrant children from their parents. They brag openly of their plans to violate the Constitution. And the Supreme Court doesn’t care.