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The Supreme Court Failed Us

Muslim Ban Protest at the Supreme Court
Muslim Ban Protest at the Supreme Court
Anthony D. Romero,
ACLU Executive Director
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June 27, 2018

Tuesday is a dark day for American jurisprudence and the values we hold dear as a nation. In a 5-4 ruling, the Supreme Court upheld President Donald Trump’s travel ban. Under the false guise of protecting national security, the justices sanctioned a policy that targets people because of their religion.

The ruling is an example of what happens when the government bases a policy on prejudice and bigotry and the court fails to stop it.

As children, Americans are taught that the role of the Supreme Court is to check the power of the president and Congress. It is supposed to defend the Constitution and stay above politics and bitter partisanship. This duty is especially important at a time when an autocratic president is attacking our basic norms and institutions.

Sadly, in issuing this decision, the court abdicated that responsibility. The five justices ruling in the majority performed a routine of judicial acrobatics to construct a legal argument sanctioning religious discrimination.

During his campaign, Trump called for “a total and complete shutdown of Muslimsentering the United States.” He made good on that promise during his first days in office with an executive order that banned people from seven predominantly Muslim countries. He then adjusted the list of nations subject to his ban as several courts repudiated his order as unconstitutional. The current ban — applying to five Muslim-majority nations and North Korea and Venezuela — is no less the result of anti-religious animus than the previous bans.

As Justice Sonia Sotomayor points out in Tuesday’s opinion, the Supreme Court failed to heed evidence that “a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus.” Instead of applying the reasonable person standard, political affiliation seemed to carry the day with the five Republican-appointed justices.

In the days before the decision, the ACLU commissioned a poll to find out what a reasonable observer might think. Seventy-seven percent of Democrats surveyed said they believed it was a Muslim ban, while 69 percent of Republicans said it was not.

Sadly, the Supreme Court vote broke down the same way. The justices appointed by Democratic presidents saw a Muslim ban. The justices appointed by Republicans did not. Even Sotomayor laments the decision’s impact on the stature and standing of the Supreme Court: “Our Constitution demands, and our country deserves, a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”

The Supreme Court missed a historic opportunity to rise above partisan politics and to say constitutional principles must be upheld, notwithstanding the Kabuki theater of partisan politics or White House pundits. In the Muslim ban, there are core principles — equality under the law and freedom of religion — that are so central to American democracy that one would hope that all Americans regardless of party affiliation would unflinchingly reject such discrimination. Tuesday is not that day. Let us hope that better days are ahead of us — for the Supreme Court and for the nation.

This article was originally published at USA Today.

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