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.

According to a personal message from Idaho teacher Levi Cavener, vouchers are dead in Idaho this year.

He wrote me: “The Senate Committee pulled the bill from the agenda, which means the bill is dead for this year’s session.”

This is great news. Educators across the state, including Don Coberly, the superintendent of Boise, objected that vouchers are divisive and have failed to improve achievement in other states. The State Board of Education unanimously opposed it, as did many Republicans. It narrowly passed in the House.

All citizens of Idaho should carefully read the explicit language of Article IX, Section 5, of the State Constitution. If voucher advocates want to change the Constitution, they should call for a referendum to do so and put it to the public.

CONSTITUTION OF THE STATE OF IDAHO
APPROVED JULY 3, 1890

ARTICLE IX
EDUCATION AND SCHOOL LANDS

SECTION 1. LEGISLATURE TO ESTABLISH SYSTEM OF FREE SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.

SECTION 2. BOARD OF EDUCATION. The general supervision of the state educational institutions and public school system of the state of Idaho, shall be vested in a state board of education, the membership, powers and duties of which shall be prescribed by law. The state superintendent of public instruction shall be ex officio member of said board.

SECTION 3. PUBLIC SCHOOL PERMANENT ENDOWMENT FUND TO REMAIN INTACT. The public school permanent endowment fund of the state shall forever remain inviolate and intact; the earnings of the public school permanent endowment fund shall be deposited into the public school earnings reserve fund and distributed in the maintenance of the schools of the state, and among the counties and school districts of the state in such manner as may be prescribed by law. No part of the public school permanent endowment fund principal shall ever be transferred to any other fund, or used or appropriated except as herein provided. Funds shall not be appropriated by the legislature from the public school earnings reserve fund except as follows: the legislature may appropriate from the public school earnings reserve fund administrative costs incurred in managing the assets of the public school endowment including, but not limited to, real property and monetary assets. The state treasurer shall be the custodian of these funds, and the same shall be securely and profitably invested as may be by law directed. As defined and prescribed by law, the state shall supply losses to the public school permanent endowment fund, excepting losses on moneys allocated from the public school earnings reserve fund.

SECTION 4. PUBLIC SCHOOL PERMANENT ENDOWMENT FUND DEFINED. The public school permanent endowment fund of the state shall consist of the proceeds from the sale of such lands as have heretofore been granted, or may hereafter be granted, to the state by the general government, known as school lands, and those granted in lieu of such; lands acquired by gift or grant from any person or corporation under any law or grant of the general government; and of all other grants of land or money made to the state from the general government for general educational purposes, or where no other special purpose is indicated in such grant; all estates or distributive shares of estates that may escheat to the state; all unclaimed shares and dividends of any corporation incorporated under the laws of the state; and all other grants, gifts, devises, or bequests made to the state for general educational purposes; and amounts allocated from the public school earnings reserve fund. Provided however, that proceeds from the sale of school lands may be deposited into a land bank fund to be used to acquire other lands within the state for the benefit of endowment beneficiaries. If those proceeds are not used to acquire other lands within a time provided by the legislature, the proceeds shall be deposited into the public school permanent endowment fund along with any earnings on the proceeds.

SECTION 5. SECTARIAN APPROPRIATIONS PROHIBITED. Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose; provided, however, that a health facilities authority, as specifically authorized and empowered by law, may finance or refinance any private, not for profit, health facilities owned or operated by any church or sectarian religious society, through loans, leases, or other transactions.

SECTION 6. RELIGIOUS TEST AND TEACHING IN SCHOOL PROHIBITED. No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatever. No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.

SECTION 7. STATE BOARD OF LAND COMMISSIONERS. The governor, superintendent of public instruction, secretary of state, attorney general and state controller shall constitute the state board of land commissioners, who shall have the direction, control and disposition of the public lands of the state, under such regulations as may be prescribed by law.

SECTION 8. LOCATION AND DISPOSITION OF PUBLIC LANDS. It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be granted to or acquired by the state by or from the general government, under such regulations as may be prescribed by law, and in such manner as will secure the maximum long term financial return to the institution to which granted or to the state if not specifically granted; provided, that no state lands shall be sold for less than the appraised price. No law shall ever be passed by the legislature granting any privileges to persons who may have settled upon any such public lands, subsequent to the survey thereof by the general government, by which the amount to be derived by the sale, or other disposition of such lands, shall be diminished, directly or indirectly. The legislature shall, at the earliest practicable period, provide by law that the general grants of land made by congress to the state shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective object for which said grants of land were made, and the legislature shall provide for the sale of said lands from time to time and for the sale of timber on all state lands and for the faithful application of the proceeds thereof in accordance with the terms of said grants; provided, that not to exceed one hundred sections of state lands shall be sold in any one year, and to be sold in subdivisions of not to exceed three hundred and twenty acres of land to any one individual, company or corporation. The legislature shall have power to authorize the state board of land commissioners to exchange granted or acquired lands of the state on an equal value basis for other lands under agreement with the United States, local units of government, corporations, companies, individuals, or combinations thereof.

SECTION 9. COMPULSORY ATTENDANCE AT SCHOOLS. The legislature may require by law that every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law.

SECTION 10. STATE UNIVERSITY – LOCATION, REGENTS, TUTITION, FEES AND LANDS. The location of the University of Idaho, as established by existing laws, is hereby confirmed. All the rights, immunities, franchises, and endowments, heretofore granted thereto by the territory of Idaho are hereby perpetuated unto the said university. The regents shall have the general supervision of the university, and the control and direction of all the funds of, and appropriations to, the university, under such regulations as may be prescribed by law. The regents may impose rates of tuition and fees on all students enrolled in the university as authorized by law. No university lands shall be sold for less than ten dollars per acre, and in subdivisions not to exceed one hundred and sixty acres, to any one person, company or corporation.

SECTION 11. INVESTING PERMANENT ENDOWMENT FUNDS. The permanent endowment funds other than funds arising from the disposition of university lands belonging to the state, may be invested in United States, state, county, city, village, or school district bonds or state warrants or other investments in which a trustee is authorized to invest pursuant to state law.