They come to America as immigrants seeking freedom. They are arrested, separated from their children, and imprisoned.

Their children are sent to distant facilities. Some will never see their parents again.

ICE has ordered 60 full-body restraints for the immigrants who resist.

Is this America?

The “GranniesRespond” campaign is enroute to the southern border to speak up for justice and decency and family reunification.

They stopped in Reading, PA., and Louisville. Next stop, Montgomery, Alabama.

Check their schedule here. Meet and greet them.

Sorry that I didn’t notice that this article was published in November 2017.
Now that the far-right will have a five-man Majority on the Supreme Court, it May no longer matter what happens in the lower courts. If one of the four liberal judges should retire or die, the rightwing stranglehold would be secure for many decades to come. Five is enough, and the oldest is not yet 70.

This column in the Washington Post reports on a frankly terrifying Republican Plan to expand the number of judicial seats and fill them as rapidly as possible before the 2018 election.

Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same.

Noah Feldman wrote a smart and thoughtful article for the New York Review of Books about the likely rulings of a Supreme Court with an activist conservative majority, ansent any moderating Justice.

It’s an interesting read. Let me know if it is behind a paywall and I will post more of it.

He writes:

“If Donald Trump’s nominee to replace Justice Anthony Kennedy, who announced his retirement on June 27, is confirmed by the Senate, the Supreme Court will have a stable majority of conservative justices for the first time since before the New Deal. Kennedy’s successor will be Trump’s second Surpreme Court pick and may not be his last. Justice Ruth Bader Ginsburg, who is eighty-five, clearly wishes to stay on the Court as long as Trump is president. So does Justice Stephen Breyer, who turns eighty later this year. But neither is immortal. Especially if Trump is reelected, he could potentially replace both of these justices with staunch young conservatives.

“The current Court’s four consistent conservatives are all substantially younger than Kennedy, Ginsburg, and Breyer. The oldest, Clarence Thomas, is sixty-nine. Samuel Alito is sixty-eight, Chief Justice John Roberts is sixty-three, and Neil Gorsuch is just fifty. All are self-described constitutional originalists; all favor interpreting statutes based on text rather than their intention; and all have strongly pro-business judicial records. Should Trump appoint a fifth conservative—to say nothing of a sixth or seventh—the conservative majority could easily last a generation.

“In light of this prospect, it is not too soon to start asking what a conservative Supreme Court would mean for the country. A conservative jurisprudence, aggressively applied, would reshape American law and politics. It would reinterpret fundamental issues of individual and privacy rights, health care, employment, national security, and the environment. These changes would in turn affect electoral politics. The range of conservative legislation that could survive judicial review would expand, while the range of progressive legislation that could do so would narrow.

“In retrospect, it is remarkable that a strong conservative majority on the Court has not emerged before now. Since 1980, Republicans have held the presidency for twenty-two years and Democrats for sixteen. Ronald Reagan, who campaigned on the platform of choosing conservative judges, appointed three justices—Antonin Scalia, Sandra Day O’Connor, and Kennedy—and elevated William Rehnquist to the chief justiceship. That should have established conservative control. Yet O’Connor turned out to be a centrist, controlling the Court for a quarter-century by casting the decisive fifth vote in controversial cases. When she retired in 2006, Kennedy assumed her position as the swing justice and unexpectedly emerged as a liberal hero, voting, for example, to extend constitutional rights to detainees in Guantánamo Bay and marriage rights to same-sex couples.1

“George H.W. Bush also had the chance to consolidate a conservative majority. He appointed Thomas to replace Thurgood Marshall but also replaced William Brennan with David Souter, who underwent a subtle yet significant evolution from Burkean conservative to Burkean liberal. Bill Clinton, George W. Bush, and Barack Obama each got two justices confirmed, which maintained the Court’s balance. That conservative control has been so long in coming reflects either miscalculation by Reagan and George H.W. Bush or (more likely) something less than full-throated judicial conservatism on their part.

“There is one glaring anomaly in the pattern of appointments. Obama should have been able to get Merrick Garland confirmed after Scalia died in February 2016—which would have provided some insulation against a conservative majority. The Senate’s decision to block the moderate Garland purely because Obama nominated him transformed both the composition of the Court and the norms of the confirmation process.

“A Senate controlled by Democrats would probably refuse to confirm any Trump Supreme Court nominee, no matter how much time remains in his presidency. If justices can only be confirmed when the president and the Senate majority come from the same party, we will witness a shrinking Supreme Court forced to operate with eight, seven, or even six justices. In this scenario, a president whose party controls the Senate would have the chance to fill all those vacancies with justices who share his or her ideology. The Court’s politics would no longer drift gradually but veer suddenly to the left or the right.

“One of the first things likely to happen if the Court’s majority turns conservative is that state legislatures in heavily Republican states will pass legislation restricting abortion rights. Already, Mississippi has passed a law barring abortions after fifteen weeks—long before viability. A federal court blocked the law, but its passage signals clearly that the Court will come under pressure to revisit Roe v. Wade.

“In the past, Chief Justice Roberts has shown a decided preference for changing constitutional law indirectly. Rather than overturning landmark liberal precedents outright, he prefers to minimize their importance by narrowing them and limiting their holdings to factual situations that no longer exist. He would surely prefer that Roe suffer death by a thousand cuts rather than see the Court accused of overturning it in a stroke and casting the country back to the days of coat-hanger and back-alley abortions.”

Some dissents turn out to be more important lodestars in the Law than the majority opinion. Often the majority is wrong, as it was in the Dred Scott case, Plessy v. Ferguson, and Korematsu.

Please read Justice Sonia Sotomayor’s dissent on the Muslim Travel Ban Case (Trump v. Hawaii), joined by Justice Ruth Bader Ginsberg. The Trump administration, in its third iteration, added North Korea and Venezuela, to five majority-Muslim nation’s in a thinly disguised effort to hide its religious bias. There is no migration from North Korea. Muslim countries where the Trump organization does business were curiously excluded from the Travel Ban.

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu­trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus­ lims entering the United States” because the policy now masquerades behind a façade of national-security con­ cerns. But this repackaging does little to cleanse Presi­ dential Proclamation No. 9645 of the appearance of dis­ crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab­ lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­ mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.

Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitu­ tional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one. Whatever the merits of plaintiffs’ com­ plex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Estab­ lishment Clause’s guarantee of religious neutrality.

The Establishment Clause forbids government policies “respecting an establishment of religion.” U. S. Const., Amdt. 1. The “clearest command” of the Establishment Clause is that the Government cannot favor or disfavor one religion over another. Larson v. Valente, 456 U. S. 228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amend­ ment forbids an official purpose to disapprove of a particu­ lar religion”); Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (“The Establishment Clause . . . forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma” (internal quotation marks omitted)); Lynch v. Donnelly, 465 U. S. 668, 673 (1984) (noting that the Establishment Clause “forbids hostility toward any [religion],” because “such hostility would bring us into ‘war with our national tradition as embodied in the First Amendmen[t]’”); Epper­ son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State may not adopt programs or practices . . . which aid or oppose any religion. This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevi­ tabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370 U. S. 421, 431 (1962). That is so, this Court has held, because such acts send messages to members of minority faiths “‘that they are outsiders, not full members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309 (2000). To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 703 (1994) (recognizing the role of courts in “safeguarding a principle at the heart of the Establish­ ment Clause, that government should not prefer one reli­ gion to another, or religion to irreligion”).

“When the government acts with the ostensible and predominant purpose” of disfavoring a particular religion, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005). To determine whether plaintiffs have proved an Establishment Clause violation, the Court asks whether a reasonable observer would view the gov­ ernment action as enacted for the purpose of disfavoring a religion. See id., at 862, 866; accord, Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 19).

In answering that question, this Court has generally considered the text of the government policy, its operation, and any available evidence regarding “the historical back­ ground of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by” the decisionmaker. Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation . . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a drafter’s heart of hearts.” Id., at 862.

Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). The full record paints a far more harrowing pic­ ture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.

During his Presidential campaign, then-candidate Don­ ald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on Decem­ ber 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which re­ mained on his campaign website until May 2017 (several months into his Presidency), read in full:

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing ‘25% of those polled agreed that violence against Americans here in the United States is justi­ fied as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

“Mr. Trum[p] stated, ‘Without looking at the vari­ ous polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for Presi­ dent, we are going to Make America Great Again.’— Donald J. Trump.” Id., at 158; see also id., at 130– 131.

On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id., at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to “rethink [his] position” on “banning Muslims from enter­ ing the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid.

As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123.

A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] ex­ treme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid.

On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu­ lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of Presi­ dent Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Ibid.

On February 3, 2017, the United States District Court for the Western District of Washington enjoined the en­ forcement of EO–1. See Washington v. Trump, 2017 WL 462040, *3. The Ninth Circuit denied the Government’s request to stay that injunction. Washington v. Trump, 847 F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal the Ninth Circuit’s decision, the Government declined to continue defending EO–1 in court and instead announced that the President intended to issue a new executive order to replace EO–1.

On March 6, 2017, President Trump issued that new executive order, which, like its predecessor, imposed tem­ porary entry and refugee bans. See Exec. Order No. 13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s senior advisers publicly explained that EO–2 would “have the same basic policy outcome” as EO–1, and that any changes would address “very technical issues that were brought up by the court.” App. 127. After EO–2 was issued, the White House Press Secretary told reporters that, by issuing EO–2, President Trump “continue[d] to deliver on . . . his most significant campaign promises.” Id., at 130. That statement was consistent with President Trump’s own declaration that “I keep my campaign prom­ ises, and our citizens will be very happy when they see the result.” Id., at 127–128.

Before EO–2 took effect, federal District Courts in Ha­ waii and Maryland enjoined the order’s travel and refugee bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239 (Haw. 2017); International Refugee Assistance Project (IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017). The Fourth and Ninth Circuits upheld those injunctions in substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789 (CA9 2017) (per curiam). In June 2017, this Court granted the Government’s petition for certiorari and issued a per curiam opinion partially staying the District Courts’ in­ junctions pending further review. In particular, the Court allowed EO–2’s travel ban to take effect except as to “for­ eign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).

While litigation over EO–2 was ongoing, President Trump repeatedly made statements alluding to a desire to keep Muslims out of the country. For instance, he said at a rally of his supporters that EO–2 was just a “watered down version of the first one” and had been “tailor[ed]” at the behest of “the lawyers.” App. 131. He further added that he would prefer “to go back to the first [executive order] and go all the way” and reiterated his belief that it was “very hard” for Muslims to assimilate into Western culture. Id., at 131–132. During a rally in April 2017, President Trump recited the lyrics to a song called “The Snake,” a song about a woman who nurses a sick snake back to health but then is attacked by the snake, as a warning about Syrian refugees entering the country. Id., at 132, 163. And in June 2017, the President stated on Twitter that the Justice Department had submitted a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The President went on to tweet: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Id., at 132–133. He added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politi­ cally correct term that won’t help us protect our people!” Id., at 133. Then, on August 17, 2017, President Trump issued yet another tweet about Islam, once more referenc­ ing the story about General Pershing’s massacre of Mus­ lims in the Philippines: “Study what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in original).

In September 2017, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!” App. 133. Later that month, on Sep­ tember 24, 2017, President Trump issued Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proc­ lamation), which restricts entry of certain nationals from six Muslim-majority countries. On November 29, 2017, President Trump “retweeted” three anti-Muslim videos, 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!”2 IRAP II, 883 F. 3d, at 267. Those videos were initially tweeted by a British political party whose mission is to oppose “all alien and destructive politic[al] or reli­ gious doctrines, including . . . Islam.” Ibid. When asked about these videos, the White House Deputy Press Secre­ tary connected them to the Proclamation, responding that the “President has been talking about these security is­ sues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” Ibid.

As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary, 545 U. S., at 862–863. The answer is unquestionably yes. [Footnote: 2 The content of these videos is highly inflammatory, and their titles are arguably misleading. For instance, the person depicted in the video entitled “Muslim migrant beats up Dutch boy on crutches!” was report­ edly not a “migrant,” and his religion is not publicly known. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam­ matory Anti-Muslim Videos, and Britain’s Leader Condemns Them, N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are Dutch”), https: // http://www.nytimes.com / 2017 / 11 / 29 / us / politics / trump­ anti-muslim-videos-jayda-fransen.html (all Internet materials as last visited June 25, 2018).]

Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id., at 121, promised to enact a “total and complete shut­ down of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l]” way to enact a Muslim ban, id., at 125.3 The President continued to make similar statements well after his inauguration, as detailed above, see supra, at 6–10.

[Footnote: 3The Government urges us to disregard the President’s campaign statements. Brief for Petitioners 66–67. But nothing in our precedent supports that blinkered approach. To the contrary, courts must con­ sider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion of KENNEDY, J.). Moreover, President Trump and his advisers have repeatedly acknowledged that the Proclamation and its predecessors are an outgrowth of the President’s campaign statements. For exam­ple, just last November, the Deputy White House Press Secretary reminded the media that the Proclamation addresses “issues” the President has been talking about “for years,” including on “the cam­ paign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as the Fourth Circuit correctly recognized, even without relying on any of the President’s campaign statements, a reasonable observer would conclude that the Proclamation was enacted for the impermissible purpose of disfavoring Muslims. Id., at 266, 268.]

[Footnote: 4At oral argument, the Solicitor General asserted that President Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban” and “has praised Islam as one of the great countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record contained no evidence of any such statement made on September 25th, however, the Solicitor General clarified after oral argument that he actually intended to refer to President Trump’s statement during a television interview on January 25, 2017. Letter from N. Francisco, Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply Brief 28, n. 8. During that interview, the President was asked whether EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim ban.” See Transcript: ABC News anchor David Muir interviews Presi­ dent Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/ transcript-abc-news-anchor-david-muir-interviews-president / story ? id = 45047602. But that lone assertion hardly qualifies as a disavowal of the President’s comments about Islam—some of which were spoken after January 25, 2017. Moreover, it strains credulity to say that President Trump’s January 25th statement makes “crystal-clear” that he never intended to impose a Muslim ban given that, until May 2017, the President’s website displayed the statement regarding his cam­ paign promise to ban Muslims from entering the country.]

Moreover, despite several opportunities to do so, Presi­ dent Trump has never disavowed any of his prior state­ ments about Islam.4 Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its follow­ ers. Given President Trump’s failure to correct the rea­ sonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s law­ yers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746– 747 (1992) (“[G]iven an initially tainted policy, it is emi­ nently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and be­ cause discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally signifi­ cant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—were inconsistent with what the Free Exercise Clause requires”). It should find the same here.

Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.

Rather than defend the President’s problematic state­ments, the Government urges this Court to set them aside and defer to the President on issues related to immigra­ tion and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establish­ment Clause claim.

……..

I am not copying the balance of the decision, as I have to cut and paste one paragraph at a time, which is very tedious. To read the rest, go to the decision itself.

Click to access 17-965_h315.pdf

But here is the concluding section. I fully expect Justice Sotomayer’s Dissent to be read in generations to come as an affirmation of basic American principles, and the majority decision will be reviled as an e er is in bigotry and raw political power, like the majority decisions in Dred Svott, Plessey v Ferguson, and Korematsu.

Justice Sotomayor concludes:

The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance. That constitutional promise is why, “[f]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” Town of Greece v. Galloway, 572 U. S., at ___ (KAGAN, J., dissent­ ing) (slip op., at 1). Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.

Just weeks ago, the Court rendered its decision in Mas­ terpiece Cakeshop, 584 U. S. ___, which applied the bed­ rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. See id., at ___ (slip op., at 17) (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter­ vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi, 508 U. S., at 547)); Masterpiece, 584 U.S., at ___ (KAGAN, J., concurring) (slip op., at 1) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a gov­ ernment actor exhibited tolerance and neutrality in reach­ ing a decision that affects individuals’ fundamental reli­ gious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” id., at ___ (slip op., at 17), the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and toler­ ance. Unlike in Masterpiece, where the majority consid­ ered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, id., at ___–___ (slip op., at 12–14), the majority here completely sets aside the President’s charged state­ ments about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political commu­ nity.’ ” Santa Fe, 530 U. S., at 309.

Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Japanese American Citizens League as Amicus Curiae. In Korematsu, the Court gave “a pass [to] an odious, gravely injurious racial classification” authorized by an executive order. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 275 (1995) (GINSBURG, J., dissenting). As here, the Government invoked an ill-defined national- security threat to justify an exclusionary policy of sweep­ ing proportion. See Brief for Japanese American Citizens League as Amicus Curiae 12–14. As here, the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States. See Korematsu, 323 U. S., at 236–240 (Murphy, J., dissenting). As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Securi­ ty’s] report from view”). And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.

Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of na­ tional security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting). Justice Jackson lamented that the Court’s decision upholding the Government’s policy would prove to be “a far more subtle blow to liberty than the promulgation of the order itself,” for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure. Id., at 245–246.

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud­ able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi­ natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.

Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac­ count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.