The Supreme Court's New Dred Scott Decision

Justices Gorsuch and Roberts - history will not judge them kindly. 

Throughout its history, the United States Supreme Court has on occasion spectacularly failed to rule in the interest of justice and fairness.  It did so again when it narrowly upheld Donald Trump's Muslim ban despite all the evidence that religious based animus was the motivating factor for its enactment.  As in its past spectacular failures, the conservative majority of the court - made far worse by the elevation of Neil Gorsuch, a champion of special rights for Christian extremists - ratified bigotry rampant within portions of the American populace.   While not the only wrong headed ruling  by the conservative majority - it looked the other way in a racial gerrymandering case out of Texas - Trump v. Hawaii is perhaps the most hypocritical given the Court's recent deference to a Christian extremist's "beliefs" in the Masterpiece Cakeshop ruling. Apparently religion and religious belief only merit protection when it is of a right wing Christian variety.  A column in the Washington Post rightly rips the Roberts Court.  Here are excerpts:

The Supreme Court’s approval of President Trump’s travel ban barring entry to some 150 million people from five overwhelmingly Muslim countries is likely to be judged by history as one of the court’s greatest failures — in a league with Dred Scott v. Sandford, which helped bring on the Civil War, and Korematsu v. United States, which upheld the wartime detention of more than 110,000 Japanese Americans and noncitizens of Japanese descent.

Chief Justice John G. Roberts Jr., perhaps recognizing the disturbing parallels, sought to distance the court from this critique by declaring, nearly 75 years after the fact, that Korematsu “was gravely wrong the day it was decided” and that it has “nothing to do with this case.” But it has everything to do with this case: In Trump v. Hawaii, as in Korematsu and Dred Scott, the court was asked to stand up for the rights of the vulnerable against the biases of the powerful — and failed.

In a 5-to-4 decision, the court’s conservative justices wrote that even considering all of President Trump’s anti-Muslim statements about the ban, the order should be upheld as long as the court could imagine any plausible basis for it, applying the most deferential standard of scrutiny in constitutional law. In doing so, the court effectively closed its eyes to what the world sees and rubber-stamped a ban that effectively erected a sign at the U.S. borders reading “Muslims not welcome.”

In Dred Scott, the Supreme Court in 1857 struck down a statute prohibiting slavery in the northern territories, saying that “the right of property in a slave is distinctly and expressly affirmed in the Constitution,” and that African Americans had “no rights which the white man was bound to respect.” The decision treated human beings as property and denied Congress the power to ban slavery in the territories.

In Korematsu , the Supreme Court in 1944 upheld President Franklin D. Roosevelt’s internment of Japanese American citizens and noncitizens of Japanese descent against a challenge that it unconstitutionally discriminated on the basis of race and national origin. . . . . the court simply deferred to unwarranted aspersions cast on an entire segment of the U.S. population by the military. In Trump v. Hawaii, there was overwhelming evidence that Trump’s ban targeted Muslims. As a presidential candidate, Trump called for “a total and complete shutdown of Muslims entering the United States,” because, he asserted, “Islam hates us.” He explained that he would do so by using territories as a proxy for religion, because “people were so upset when I used the word Muslim.” One week after taking office, he did just that. In case there were any doubt, he said in an interview with the Christian Broadcasting Network that day that the order would give priority to Syrian Christians over Muslim refugees.

When that order and a second one were both blocked in court, Trump issued a third version, which also bars entry to North Koreans and certain Venezuelan government officials, but because almost none of them come to the United States anyway, virtually everyone affected remains Muslim.

Just a few weeks ago, the Supreme Court reminded us in Masterpiece Cakeshop v. Colorado Civil Rights Commission that the freedom of religion “bars even ‘subtle departures from neutrality’ on matters of religion.” The court warned that when there is “even slight suspicion” of animosity to religion underlying government action, all public officials “must pause to remember their own high duty to the Constitution and to the rights it secures.” . . . Yet the court openly abdicated that duty in a case with more evidence of religious animus than perhaps any other it has ever considered.

Had any other government official, in any other context, acted so openly out of animus against a particular religion, the court would swiftly and rightly step in to uphold the establishment clause. It did so on extraordinarily weak evidence of religious bias by a state civil rights commission functionary in Masterpiece Cakeshop. But in Trump v. Hawaii, the court reasoned that because the biased official is the president exercising his immigration authority, it should for all intents and purposes look the other way. . . . just as in Dred Scott and Korematsu, the Supreme Court failed the ultimate test of justice. It bowed to the prejudice of the powerful when its duty was to protect the most vulnerable.  Even as he repeated the court’s worst past mistakes, Roberts declared that Korematsu had been “overruled in the court of history.” So, too, will Trump v. Hawaii.

Until the hold of the "conservatives" on the Court - they are in reality, mostly racists and bigots - is shifted back to moderates, expect more horrific rulings with further erosion of civil rights of those hated by the Republican base of Christian extremists and white supremacists.  Be very afraid.