Yesterday, the MacArthur Justice Center (for which I work) released a 4-minute video capturing the record leading up to Trump’s travel ban which—no matter how good you think your memory is—is shocking to watch. In this post, I explain a corollary of that video: When the Justices of the Supreme Court gather on Wednesday to consider the constitutionality of President Trump’s travel ban, it may be their own legacy—not the President’s—that hangs in the balance.
Experience tells us that when future generations judge a particular composition of the Supreme Court, a major failure can become the defining feature of that Court, overshadowing substantial contributions to the law. It also tells us there is one kind of failure that future generations never excuse: Acquiescence to racial, ethnic, or religious bigotry.
Such acquiesce has left a permanent scar on prior compositions of the Supreme Court, including the Taney Court (1836-1864), Fuller Court (1888-1910), and Stone Court (1941-1946). Each of those time periods, named for their respective Chief Justices, were responsible for some of the most significant decisions in Supreme Court history but remain defined by their lowest point. Chief Justice Roger Taney presided over the Supreme Court for almost 30 years, during which the Court decided several historic decisions (including, for instance, recognizing the supremacy of federal courts on issues of federal law). But the Taney Court will forever be marred by Dred Scott v. Sandford, in which it accepted that a freed black man was not a citizen under the Constitution. The 22 years that Melville Fuller similarly led the Court rendered many lauded and criticized decisions, but its stature was forever tarnished by Plessy v. Ferguson, in which it accepted racial segregation as “separate but equal.”
In the short, five-year period that Harlan Fiske Stone presided as Chief Justice, the Supreme Court contributed several decisions that continue to shape the judiciary and American life. For instance, Stone himself authored International Shoe Co. v. Washington, a seminal decision known to every first-year law student and which judges still apply every day to determine which people or corporations they have jurisdiction over. Yet, today, no one could feel secure discussing the Stone Court without acknowledging its deepest mistake, Korematsu v. United States, in which it acquiesced to President Roosevelt’s internment of tens of thousands of Japanese Americans.
How do we know that the travel ban harkens back to this shameful territory? For starters, Trump’s blatant intent to discriminate against Muslims will be part of the permanent historical record. Trump has routinely labelled Muslims a “problem,” specifically promised to ban them from the U.S., and even previewed that he would do it through an order that lists certain majority-Muslim territories. In fact, I filed a brief in the Supreme Courtdetailing the President’s record of animus against Muslims, but the Court’s 9,000 word limit simply wasn’t enough to cover it all.
We also know this is a similar evil because the President told us so. When Trump was asked how he could justify banning Muslims from the U.S., he repeatedly and openly cited the internment of Japanese Americans with approval. “What I’m doing is no different than F.D.R.’s solution for Germans, Italians, Japanese, many years ago,” he said.
All of this should make clear that it’s not President Trump’s legacy at stake. Regardless of what the Supreme Court says, everyone knows what President Trump stands for—if he has been one thing, it’s transparent.
It’s the legacy of the Robert’s Court on the line. The Stone, Fuller, and Taney Courts all should have known they were in the wrong at the time they decided their respective failures. But the Roberts Court has perhaps the clearest warning of any—the President’s own invocation of decisions that are already viewed as the Supreme Court’s darkest.
If the Roberts Court acquiesces, history will remember it—perhaps over all else.