Korematsu Lives

I'll keep my comments brief.  I do so because if I don't significantly self-edit myself here, I'll probably keep writing for the next several hours, and this would be so long that I'd risk driving away readers from here permanently.

I'll just say two things.

First, there are many things that are absolutely legal, but we don't do them because as mature adults we know they're stupid, cruel, unnecessary, wasteful, counter-productive and more.  It's perfectly legal to buy a bulldozer in order to crack open one walnut, but people simply don't do that because...well, it's because I don't have to explain "why" that makes clear why people don't do it.  It's legal to stand in your front yard and spew racial epithets at random minorities who walk by, but even the most virulent racists don't generally do that.  The world is full of legal actions that people don't do because being legal doesn't make them right.  So, even though the Supreme Court in its heavily-conservative bias removed the injunction against Trump's third attempt at a watered-down but still-impactful travel ban against Muslim, actually putting it in operation would devastate America's standing in the world, and play directly into the late-Osama bin Laden's hands by creating a culture war, helping terrorists recruit followers.  (It will also, on a purely-political level, pound the GOP.  The public doesn't actually care much about Yemen and Chad, that's not going to drive Republicans to the polls -- but we see how awakened and furious so many Democrats have become over Trump immigration cruelty.)

And second, if Mitch McConnell (R-KY) and the enabling Republicans didn't shred a portion of the Constitution, Merrick Garland would be a Supreme Court Justice today, and this ruling would not be in effect.

And with that, I finish.  Mr. Speaker, I yield the rest of my time to Justice Sonia Sotomayor.  Here are excerpts of her minority opinion to the Supreme Court ruling.  She not only wrote out her opinion, in which she was joined by Justice Ruth Bader Ginsberg, but she took the rare step of reading it out loud.  

I preface it with a comment yesterday from Nina Totenberg, longtime legal affairs correspondent for National Public Radio.

Without audio of today’s announcement, there is no way to replicate Sotomayor’s fury in a 20-minute dissent from the bench re: today’s travel ban decision

— Nina Totenberg (@NinaTotenberg) June 26, 2018

​​"The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle."

Later, she continues --

"It leaves undisturbed a policy first advertised openly and unequivocally as a 'total and complete shutdown of Muslims entering the United States' because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus."

Justice Sotomayor adds --

"Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam. Instead, he has continued to make unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint."

In her opinion, she referenced a 1944 Supreme Court case, Korematsu v. United States.  This was the long-since ruling that ordered Japanese-Americans into internment camps during World War II and which was officially overturned on Tuesday. . However, Sotomayor wrote that Tuesday's decision on Trump's policy isn't that different from the Korematsu case.

"This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong' decision with another."

For her conclusion, it's notable that Supreme Court protocol is that when Justices deliver minority opinions, they end by saying that they "respectfully dissent."  Only on those rare occasions when their disagreement is deeply fundamental do they leave out the "respectfully."  She wrote --

“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. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”