Explanation

In the 50 years after the Civil Rights Movement, there was an important positive development: explicit racial malice was broadly and publicly disavowed across American society. At the level of publicly articulated values and beliefs, anti-racism won. Yet no broad cultural and societal practice, as deeply ingrained into our daily lives and identities as racism, simply disappears or ceases to exist. In the second half-century since the Civil Rights movement, confronted with persistent racial inequality even in the face of broad anti-racist commitments, two developments are notable: 1) Many Americans have come to understand how racial inequality is continually produced even in the absence of racial malice, using the language of privilege and implicit bias, or structural and institutional racism. 2) Other Americans, especially White Americans, seeing the persistence of racial inequality as the product of unequal merit, chafe at the cultural shifts that the commitment to anti-racism requires. On the one hand, they long to speak more plainly about racial superiority and inferiority. On the other hand, explicit racism still garners negative consequences. Trump v. Hawaii, the "Muslim ban" case recently decided by the Supreme Court, is at its core about facial neutrality and discriminatory intent. There is no dearth of evidence about its intent. As painstakingly catalogued by Justice Sonia Sotomayor in her dissent (Sotomayor dissent at pp. 4-12--these are worth quoting in detail), President Trump throughout his campaign and into his Administration, made no secret of his animosity towards Muslims, and his desire enact a Muslim ban. When his Administration rushed out an early Executive Order banning refugees and immigrants from certain Muslim countries, federal courts enjoined its enforcement based on the clear discriminatory intent demonstrated by the President's many statements and tweets. A key Trump adviser stated that the President had asked him to put together a Muslim ban and to find a "way to do it legally." When the President signed the order, entitled, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” he looked up, and said “We all know what that means." The Administration eventually revised the order and supplied a national security rationale supporting it, and the President promptly tweeted that the new order was a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].” 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!” The Supreme Court, in a narrow 5-4 decision written by Chief Justice John Roberts, upheld the ban, largely because the President's order was "facially neutral toward religion." The majority insists on focusing on the institutional authority of the Presidency rather than on the statements of the particular President in question. At the same time, the Court overturned one of its most notorious decisions, the Korematsu case. That World War II-era precedent upheld the incarceration of Japanese Americans. As the Court notes, Korematsu "was gravely wrong the day it was decided, has been overruled in the court of history." However, the Court insists that in substance, Korematsu was irrelevant to this decision, as Korematsu involved an order that was explicitly discriminatory on its face, whereas here the order was facially neutral. The reasoning in Korematsu focused on the extreme deference owed to the government in matters of national security. That deference was held to justify racial discrimination. And while nominally overturning Korematsu, the Court again defers to a proffered national security rationale to approve a government action that is, by the testimony of its authors if not by the language of the order itself, intended to discriminate against our Muslim sisters and brothers. Trump v Hawaii is a stain that is the exact shape and color of the decision it is replacing. It should not stand for a day, much less 75 years.