In two cases this term, the Court heard evidence that government officials based their decisions on hostility toward particular religions. In one of the cases, the Court blinked. In Trump v. Hawaii, the Court refused to hold the administration accountable for the President’s entry ban, instead saying that it is up to us, the people, to do so. Time will tell whether we have the backbone for it.

As Justice Sotomayor highlighted in her Trump v. Hawaii dissent, the contrast between the Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii illustrates how the Court treated the entry ban case as unique. In Masterpiece Cakeshop, the Court concluded that the Colorado Civil Rights Commission violated the First Amendment by sanctioning a baker’s refusal to sell a cake to a same-sex couple.  To support that conclusion, the Court pointed to a commissioner’s statement that it is “despicable” to invoke religion to harm others.

In Trump v. Hawaii, however, the Court avoided saying that the entry ban was tainted by religious animus, even though the President that enacted the ban had promised a total and complete shutdown of Muslims entering the United States and declared “Islam hates us.”  The first iteration of the entry ban had also warned of “violent ideologies” and contained an explicit preference for religious minorities in a Muslim majority country (i.e., a preference for non-Muslims).  In her dissent, Justice Sotomayor remarked on the contrast between these decisions, explaining that in Masterpiece, the “Court … found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant.”

It’s important to understand why the Court did not say the same thing about the entry ban as it said about the Colorado Civil Rights Commission.  In the entry ban case, the Court felt it was constrained by of a family of legal rules limiting courts’ ability to assess decisions related to immigration. I explained the origins of those rules in a piece for the New York Times. The more recent cases the Court relied on, including Fiallo v. Bell and Kleindienst v. Mandel, say that federal courts do not have the institutional capacity to assess President’s immigration policies or national security decisions. And in the Court’s view, those cases limited the weight the Court could afford to evidence that the entry ban was infected by hostility toward Muslims. 

Thus, in upholding the ban, the Court did not conclude that religious animus played no role in the entry ban’s enactment. It just said it was limited in what evidence it could consider in making that determination.  Courts, the Court told us, can invalidate orders that single out persons “solely and explicitly on the basis of race” or perhaps religion, but the entry ban was “facially neutral” and its text said “nothing about religion.” Thus, the Court stated that it would “uphold the [entry ban] so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” As Marty Lederman has explained, there are reasons to doubt the Court’s conclusion was even correct, accepting that as the proper standard of review.

By closing off one arena for judging the entry ban (the courts), the Court pointed us toward another—politics, and civil society. The family of legal rules the Court pointed to all concern courts’ authority to review presidential determinations. Those rules do not say what we, as a people, can decide about a presidential policy.

 Justice Antonin Scalia made this point several decades ago when he declared that the best check on presidential abuses of power is a “political check [by] the people.” And this idea has deep roots in American constitutional thought.  In the Federalist Papers, James Madison explained that the Constitution and the promises it makes would not be an “adequate defense” for liberties.  Alexander Hamilton pressed the point further, explaining that our “security” “must altogether depend on public opinion, and on the general spirit of the people,” despite “whatever fine declarations” the Constitution might make.

How would “public opinion” and “political check[s]” work?  Part of any political check is elections.  In a few short months, there will be an election, the results of which could change the immigration statutes that the Court concluded allowed the President to create the entry ban. In two long years, there will be another election still, the result of which could change who occupies the office of the Presidency that the Court concluded has so much power.

But even before then, and perhaps more importantly, long after, there are other kinds of checks on cruel immigration policies. One is the court of public opinion, which Hamilton alluded to in describing the mechanisms for enforcing constitutional rights.  Many people other than Mr. Trump and Stephen Miller contributed to the entry ban, from the administration officials who took part in its creation to the administration’s lawyers who defended it, and helped craft a “legal version” of a Muslim ban.

One way to deter morally repugnant immigration policies in the future would be to force those that have already participated in one morally repugnant immigration policy to answer for their decision to do so, and even to bear some consequences for it.  Political, professional, and social accountability might deter people from participating in a similarly morally repugnant policy in the future; at the very least, it would avoid rewarding those who did so. And opposing accountability for those who are responsible for morally abhorrent policies might be helping morally abhorrent policies to happen again in the future.

I’m not suggesting shouting at officials in restaurants, although Michelle Goldberg made a pretty good case for it in the New York Times. I’m just suggesting that those who participated in the entry ban shouldn’t be rewarded for doing so—that their government service should not count for them, as it usually does. Ideally, it would even count against them—that is, if you think that the entry ban was actually infected by or motivated in part by anti-Muslim animus (it was). This isn’t a question about whether the entry ban is legal, or what courts should or shouldn’t have done in the entry ban case.  It is a question about whether the entry ban is good policy, or even a morally sound one.

There are reasons to think that accountability is beyond our reach, and that we might not be up to the task.  Consider the nomination and confirmation of Gina Haspel to lead the Central Intelligence Agency. Haspel participated in the CIA’s torture program, and then took steps to cover it up.  In her confirmation hearings, she never apologized for either of those things. 

No one wants to be the one to stand up to a former colleague or a friend, even when that former colleague or friend is defending the administration’s decision to keep Syrian and Iranian grandmothers out of the United States, and away from their families.  No one wants to be the one to reject a nominee with glittering credentials and extensive service in the government, even when that nominee served an administration by defending its decision to yank children away from their parents, and potentially separate them forever. It can be hard to see evil in someone you know, even when someone you know is defending denying visas to Syrian refugees or forcibly separating children from families.

That is part of what makes the majority’s superficial disavowal of Korematsu v. United States so absurd.  It takes so little to condemn a policy that was enacted over five decades ago and is no longer with us today, particularly when everyone now regards that policy as morally vile (and has for a long time).  It takes so little to accuse people who are long gone of doing bad deeds.  But it takes courage to identify current policies as morally abhorrent.  And it takes courage to call out friends and professional peers for enabling those policies, and for participating in them.  

But those are the political checks and the forum of public opinion that today’s Supreme Court decision left us with. Time will tell whether we have the stomach to use them.  If not, we may someday have a Justice Stephen Miller, or at least a majority of the federal courts staffed by the elite lawyers who white-washed Miller’s xenophobic, bigoted policy so that it could become law.

@LeahLitman

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