WASHINGTON — The US Supreme Court will be asked Wednesday to consider a core question of President Trump’s rise to power: Were his anti-Muslim statements and tweets before and after winning office so steeped in bigotry that they tainted his ban on travel to the United States from certain Muslim-majority countries?
Trump promised a ban on Muslim immigration while on the campaign trail, saying “Islam hates us” and that America has “problems” with Muslims. A week after he became president, he issued an executive order banning travel from seven majority-Muslim nations, citing national security concerns.
His lawyers insisted the ban — which is currently in effect after three revisions to survive court challenges — had nothing to do with religion.
The state of Hawaii, which will be presenting oral arguments before the court Wednesday, is trying to convince the justices that the president’s broad-brush statements against those who practice a certain religion contaminated his later executive action banning travel. Opponents of the ban argue that it violates the Constitution’s establishment clause preventing the government from favoring or disfavoring any religion.
The case is very unusual. Multiple legal scholars said they could not think of another example of the court being asked to decide whether a president’s actions were tainted by racial or religious hostility, or “animus.”
“This is really an extreme case,” said Harold Koh, a law professor at Yale and former State Department official under Barack Obama. “Where do you have this kind of evidence on the record of rank prejudice as driving action? Is the court just going to ignore it?”
Hawaii’s brief reads like a charge sheet against the president, collecting every tweet and stray comment that show Trump campaigned on a Muslim ban and spread the view that Muslims are dangerous. It also includes tweets and statements after he took office, including his November 2017 retweet of anti-Muslim videos. Deputy Press Secretary Raj Shah said at the time that the videos showed “security issues” that the president addressed with the travel ban.
In its reply, the government defended the president’s comments, even attempting to explain away Trump retweeting the three anti-Muslim propaganda videos on Twitter in November 2017, which drew the rebuke of Britain’s prime minister and others. (The videos were entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!”)
“The President’s retweets do not address the meaning of the [executive order] at all,” the government retorted. “Respondents also ignore the President’s many statements disclaiming religious animus and praising Islam.”
The government has warned the court not to engage in “judicial psychoanalysis of a drafter’s heart of hearts,” quoting a key religious liberty case from 10 years ago. They say the argument that Trump wanted to ban Muslims is “conjecture” and that Hawaii has no proof the president was driven by religious hatred.
Many legal observers believe it’s unlikely that a majority of the conservative-leaning court will want to delve into Trump’s personal feelings about Muslims in a case that could be decided on less-controversial grounds.
“I think they’re going to be very uncomfortable with the tweets,” said Garrett Epps, a legal scholar at the University of Baltimore School of Law.
Even if justices believe Trump was driven in part by a dislike for Muslims, they can choose to decide that is irrelevant to the case. Instead, they could stick to a strict reading of Trump’s executive order and whether it’s within the limits of presidential power. Or they could decide that the policy illegally discriminates against Muslims, regardless of the context of Trump’s statements.
Trump’s travel ban affects people from Libya, Iran, Somalia, Syria, Yemen, North Korea, and Venezuela. The last two nations, which are not majority-Muslim, were added to the executive order in its third iteration announced last September.
There are some bad signs for Hawaii already in the Supreme Court record.
The Court gives presidents wide latitude on immigration and national security matters, and does not typically examine the motives of the executive. The Supreme Court also voted, 7 to 2, in December to overrule a lower court and allow the latest version of the travel ban to go into effect until it makes its final decision on it. That may indicate the court does not believe the ban will be struck down.
If Hawaii is to win, some legal scholars think it will be because justices want to erase the shadow of a historic Supreme Court case that allowed discrimination and is now seen as a stain on its record: Korematsu v. United States. In that World War II decision, justices greenlighted a US government program that detained Japanese-Americans on the theory that they could not properly vet them for loyalty to the United States.
Korematsu’s daughter filed a brief in this case, urging the court to side with Hawaii and overturn the travel ban.
“If you are aiming at Anthony Kennedy or at John Roberts, you say this will be a blot, this will disgrace the court,” Epps said. “Because these two men are institutionalists — they love the court. They don’t want to be stepping over the line and ending up with a decision like Korematsu.”
There are key differences between the cases, however. Korematsu was aimed at people living in the United States, including US citizens, while the travel ban predominantly affects foreigners.
Travel ban supporters argue it is the other side’s animus that is driving the case — their dislike of Trump.
“The logical conclusion from their argument is this policy would be fine if any other president did it but not President Trump because he’s a horrible bigot,” said Carrie Severino, the policy director of the conservative Judicial Crisis Network advocacy group.
A decision in the case is expected in June.