SCOTUS and the Travel Ban

Sugar coat this any way you like. Call yourself a conservative or a liberal. The recent Supreme Court decision relating to President Trump’s so-called travel ban is very troubling in many ways.

Did your ancestors immigrate from Germany, Italy or Japan? If so, you may recall that we were once at war with these countries and your ancestors could have been treated (and in some cases, were treated) like Muslim immigrants and citizens are today. Perhaps you wouldn’t enjoy the freedoms you currently enjoy, if today’s current United States Supreme Court majority were making decisions back then. While the high court attempted to disguise its’ 5-4 decision as one rooted in national security, clearly, as Justice Sonya Sotomeyer’s brilliant dissent points out, it is tainted by Donald Trump’s bigoted rhetoric seeking a ‘ban on all Muslims.’ In our judgment, this ban is a clear example of religious discrimination and unconstitutional and shame on the five who voted to uphold it.

The high court ruled that the president has the authority to request the ban according to the administration’s argument that it is necessary for national security. Furthermore, the majority did not find Trump’s previous comments regarding Muslims to diminish that argument. (You can read the official decision here.) Chief Justice Roberts, one of the ‘infamous five,’ stated that the President’s statement that resulted in the ban did not mention religion and was “squarely within the scope of [his] authority.” Furthermore, he ascertained, “the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” We don’t quarrel with his statement on presidential authority; we argue with the ridiculous notion that the president’s multiple bigoted statement against Muslims is irrelevant to the review of the ban.

Justice Sotomayor’s dissent recalls the landmark case of tice SotomayoKorematsu v. United States, a 1944 ruling that allowed for the detention of Japanese-Americans during WWII. Justice Roberts claims in response that “whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” but that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” In our opinion, as Sotomayor points out, the majority has simply replaced one ‘morally repugnant order’ with another.

While the President, as the majority determined, does indeed have “ample power” to enact the ban, that power cannot be rooted in religious discrimination. The president has called for a ‘total and complete shutdown of Muslims entering the United States.’ He has made statement after statement, tweet after tweet, comment after comment, and signed executive order after executive order in an attempt to implement such a shutdown. He tried out several rather expansive ‘models’ (all of which were repudiated by several lower courts around the country) of a Muslim ban. He kept massaging this despicable concept until he found a model that he and his cronies felt might pass constitutional muster. And the constitutional cowards of the majority ignored all of the president’s rhetoric, statements, tweets, and executive orders, focusing its’ decision only on ‘presidential power,’ as if this ‘ban’ was ordered in response to some particular threat or action. Our response? As Maya Angelou once famously said, ‘When someone shows you who they are, believe them the first time.”

Sotomayor’s dissent calls on the majority to “let the gravity of those statements (‘total and complete shutdown…’) sink in. She said that the ban “tells members of minority religions” in the United States that “they are outsiders,” concluding that “based on the evidence in this record, a reasonable observer would conclude the [ban] was motivated by anti-Muslim animus. [The majority is] turning a blind eye to the pain and suffering the [ban] inflicts upon countless families and individuals, many of whom are United States citizens.”

We all know that POTUS appoints potential Supreme Court Justices and, depending which party is in office at the time of an appointment, a political litmus test is administered to a particular appointee. Politics is why we got Neil Gorsuch rather than Merrick Garland. We understand the nature of the game; however dirty it may be. Having said that, it is our position that once a person is elevated to a position on the highest court in the land, he or she owes a duty only to the constitution and the citizens. There is no duty owed anyone that requires a justice to ignore constitutional mandates as the majority has in this case.

Before abruptly retiring and permitting Trump another appointment, Justice Kennedy, who voted with the majority, had this to say:

“There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention, that does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects…Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

“The First Amendment prohibits the establishment of religion and promises the free exercise of religion…An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

It is difficult to square these statements with his vote. He then added insult to injury by retiring and granting this erratic and bigoted president another supreme court appointment. Personal and religious liberties are in serious jeopardy. Throughout history, supreme court justices, regardless of political ideology, have risen to the occasion and administered ‘blind justice’. In these contentious times, will we ever see true judicial impartiality again? Or can we expect more ‘travel ban’ decisions? Time will tell, but we are not optimistic. What do you think?

Mark M. Bello is an attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. His second novel, “Betrayal of Justice” is a dynamic and prophetic legal thriller depicting what would happen in this country if a bigoted, anti-Muslim was elected POTUS. Sadly, the author’s predictions are coming true in real time. To read sample sections of the novel, please click here.”

He is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation, a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.