Logic of Supreme Court's travel ban ruling leaves a bad taste

In upholding President TrumpDonald John TrumpUS reimposes UN sanctions on Iran amid increasing tensions Jeff Flake: Republicans 'should hold the same position' on SCOTUS vacancy as 2016 Trump supporters chant 'Fill that seat' at North Carolina rally MORE’s travel ban this week, the Supreme Court made a bold statement about the nature of prejudice and discrimination. Whether we choose to accept its conclusions will have dramatic implications for this country’s course. This question certainly should be front and center in confirmation hearings for Justice Kennedy’s successor.

The Court faced a formidable task in explaining how a policy that the president had once actively promoted as a “Muslim ban” was other than a reflection of a preference for non-Muslim religions. A governmental preference among religions is precisely what the Establishment Clause prohibits. Moreover, the president had talked openly about the need to obscure his arguable anti-Muslim purposes to pass judicial muster.

One possible path for the Court would be to declare that bias does not matter in this context because of its outsized importance. Many would have trouble believing that we had such a severe immigration crisis after all of the measures the last two administrations imposed in more than 15 years since the September 11 attacks. Indeed, the Trump administration initially had great difficulty identifying what “extreme vetting” meant beyond what the government was already doing.


Creating an exception to the Establishment Clause’s prohibition on state favoritism among religions, however, would follow the course the Court took in its notorious Korematsu decision upholding the internment of Japanese Americans during World War II. Sitting just a few blocks from a memorial to that tragic mistake, however, the Court of course declined to invoke Korematsu. To the contrary, Chief Justice Roberts described that decision as “overruled in the court of history”.

Instead, the Court undertook the much more difficult task: holding that the president’s expressions of hostility toward Muslims were “extrinsic” to his decision. It held that because the ban “has a legitimate grounding in national security concerns, quite apart from any religious hostility, (the Court) must accept that independent justification” without inquiring whether that grounding or illicit discrimination actually motivated the president’s actions.

The Court envisions anti-Muslim bias, and arguably by extension bigotry against racial minorities, women, and others protected by civil rights laws as a passing state of mind, like anger. We may discount what people say when angry, exhausted, or intoxicated but respect, even defer to, their views when they return to thinking clearly. In the same way, the Court suggests that a policymaker may express discriminatory animus on some occasions and make decisions for non-discriminatory reasons on others. The Supreme Court is not alone: in a forthcoming article, Vanderbilt Professor Jessica Clarke finds lower courts increasingly have been finding no unlawful discrimination in cases where business owners or supervisors directed crude slurs against employees against whom they took adverse employment actions.

This is, however, a sharp departure from the Court’s past explanations for rejecting equal protection claims. Previously, the Court told challengers that they lost because they could not prove that the decision-makers were biased against them. It held to this position even when the context would cause most reasonable people to suspect discrimination: Texas in the 1960s paying predominately white categories of public assistance recipients far more than the category including most African-American and Hispanic families or a 99.95 percent white suburb refusing to allow a religious order to building integrated low-income housing on its property.

The Court previously insisted that this burden is not unrealistic for civil rights plaintiffs to bear because it “does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one. … But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, … judicial deference is no longer justified.”

In the travel ban case, when plaintiffs did more than what prior cases asked of them, the Court moved the goalposts. Plaintiffs now must show either that the discriminatory action occurred in a moment of bigotry or perhaps that bias has so thoroughly corrupted the decisionmaker as to render impossible decisions on any other basis.

As a country, we must decide if we agree that bias on the basis of religious, racial, gender, sexual identity or disability are, in fact, typically brief moments that have nothing to do with the typical person’s decision-making. If so, then “don’t hate and legislate” can take its place next to “don’t drink and drive.”

This view, however, ignores much of our lived experience. Bigotry is often more like a taste, persistently pursued. Tastes can, of course, change over time, but rarely in a matter of weeks or months, and least of all without some obvious trigger. Evidence also suggests that the “taste” for discrimination is quite widespread and not limited to momentary outbursts.

The world the Court imagines would be a much happier place even though ugly “extrinsic” remarks can still hurt and can model bigoted attitudes for others. But pretending we live in that world when we do not will only make things worse.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.