WASHINGTON (CN) - As the Supreme Court upheld President Donald Trump's so-called travel ban 5-4 Tuesday, Justice Sonia Sotomayor skewered the majority for turning a blind eye to what she called clear discrimination against Muslims.
"History will not look kindly upon the court's misguided decision today, nor should it," Sotomayor said while reading her dissent from the bench.
The censure did not appear to goad Chief Justice John Roberts, the author of the majority opinion Tuesday. Though stoic as Sotomayor spoke, Roberts occasionally glanced up at the courtroom's painted ceiling and carved statues. In his ruling, the chief justice called it clear under the Immigration and Nationality Act that the president is authorized to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.”
“The president has undoubtedly fulfilled that requirement here,” Roberts added.
Sotomayor meanwhile painted the reversal as an unwelcome echo of Korematsu v. United States, a 1944 decision in which the Supreme Court endorsed the World War II-era executive order that forced Japanese-Americans into internment camps.
“As here, the government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion,” she wrote. “As here, the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States. As here, the government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. And as here, there was strong evidence that impermissible hostility and animus motivated the government’s policy.”
But Chief Justice Roberts waved off the parallels as strained.
“Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” he wrote. “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other president — the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation.”
Sotomayor by contrast accused the majority of dishonoring the principle of religious neutrality in the First Amendment.
“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," she wrote. “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. That alone suffices to show that plaintiffs are likely to succeed on the merits of their establishment clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”