A decision that will live in infamy

Noah Feldman writes:

In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban.

Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.

The decision will be a stain not only on the legacy of the Roberts court, but on that of the Supreme Court itself. The court tried to compensate by saying how bad the Korematsu decision was. And Justice Anthony Kennedy wrote a separate concurrence in which he hints that perhaps the lower courts could reconsider the question of anti-religious animus. But these efforts are far too little to save the court, or Kennedy, from the judgment of history, which will be harsh. [Continue reading…]

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