Legal Scholars Call Travel Ban A Colossal Mistake That Legitimizes Racism

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The United States Supreme Court is seen as the last resort for Americans whose views are not shared by the majority. However Tuesday’s ruling upholding President Donald Trump’s travel ban was called a “decision that will live in infamy.”

Most people don’t know that the Supreme Court in the past has issued other infamous rulings that were acceptable to most people at the time but were later determined to be nothing more than attempts to legalize racism. Racism, however, is contrary to the U.S. Constitution, and it cannot be allowed to stand as the law of the land.

In the past, for example, the Supreme Court ruled:

that black people couldn’t be citizens (in Dred Scott v. Sanford),
that “separate but equal” accommodations for African Americans was legal (in Plessy v. Ferguson), and
that tossing 140,000 Japanese-Americans into internment camps during World War II was a legitimate exercise of constitutional authority (in Korematsu v. United States).

Due to their 5-4 decision on Tuesday upholding the Muslim travel ban (in Hawaii v. United States), the current Supreme Court is now seen as continuing this racist legacy.

In the decision, the Supreme Court’s conservative wing held that the president’s statutory authority over immigration policy and national security was not hindered or limited in this case even though Donald Trump has a long history of anti-Muslim bias.

Writing for the majority, Chief Justice John Roberts said that the proclamation issued by the president, which resulted in the Muslim travel ban, was “squarely within the scope of presidential authority” and was not undermined by “this President’s words” against Islam and Muslims when discussing the travel ban. Roberts held that the law was “not evidence of unconstitutional racial bias.”

Most reasonable Americans, however, would disagree with the Chief Justice on this point. It is stunningly obvious and clear to everyone that there is a long history of anti-Muslim rhetoric from within the Trump administration, such as:

Donald Trump once famously told CNN’s Anderson Cooper that “Islam hates us” during a televised interview, and
Some of Trump’s closest White House advisers in the past have publicly stated that “Islam is not a religion of peace” (Steve Bannon), that violence is a fundamental part of Islam (Sebastian Gorka), and that Islam is “like a cancer” (former national security adviser Michael Flynn).

In addition, Trump once told a campaign crowd: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on!”

So the Supreme Court ruled that there was nothing unconstitutional about a travel ban that the president himself repeatedly referred to as a “Muslim ban.” They justified their ruling because the executive order didn’t mention religion explicitly, even though it discriminates against Muslims in practice.

Most observers, however expressed severe doubts about the Supreme Court ruling. For example:

In a dissenting opinion Justice Sonia Sotomayor wrote that: “A reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications.”
Harvard Law professor Noah Feldman called the Muslim travel ban ruling a historic mistake and a “decision that will live in infamy.”
Senator Robert Menendez, D-N.J., wrote that “today is a sad day for American institutions, and for all religious minorities who have ever sought refuge in a land promising freedom”
The Baptist Joint Committee for Religious Liberty said in a statement that “we are deeply disappointed by the Supreme Court’s refusal to repudiate policy rooted in animus against Muslims.”
Senator Mark Warner, D-Va., wrote bluntly that, “Congress should take action to reverse the Trump travel ban.”
Congressman Keith Ellison — one of only two Muslim members of Congress — responded by stating that the Muslim ban ruling “is reminiscent of Taney Court’s Dred Scott decision…The dustbin of history awaits this one too.”
California congresswoman Barbara Lee tweeted: “History does not reflect kindly on Supreme Courts that endorse bigotry. Korematsu and Dred Scott are some of the worst rulings in US history — I have no doubt that the decision in Trump v. Hawaii will also be a source of great shame for America.#NoMuslimBanEver”
Arsalan Iftikhar is an international human rights lawyer and senior fellow at Georgetown University wrote: “now it is American Muslims’ turn to challenge and yet survive another monumentally racist mistake by the U.S. Supreme Court.”

Donald Trump and his right-wing friends are elated about the Supreme Court decision, of course, but over time this decision no doubt will be cast into “the dustbin of history” just like previous racist Supreme Court decisions, and just like the very presidency of Donald J. Trump.

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Leo Vidal

I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.