On Tuesday, five Supreme Court justices — Roberts, Kennedy, Alito, Thomas and Gorsuch — upheld Trump’s blanket ban on travel into the United States from several majority-Muslim nations. The policy was Trump’s best effort to make good on his campaign pledge promising “a total and complete shutdown of Muslims entering the United States.”

The majority decision waves away those comments — and scores of others cited by the dissenters — in which Trump makes clear that the purpose of the travel ban was to target Muslims. “[W]e must consider not only the statements of a particular President, but also the authority of the Presidency itself,” Chief Justice Roberts, writing for the majority, argues.

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

The argument, however, is a bit circular. No one suggests the president has the authority to violate the Establishment Clause, which prohibits the government from favoring one religion over another. So looking at the statements of the president is necessary to determine his intent and his authority.


Writing in dissent, Justice Sotomayor, joined by Justice Ginsburg, exposes the hypocrisy of the majority’s position to devastating effect. Sotomayor writes that, just weeks ago, in a 7-2 decision, the court ruled in favor of a baker who refused to make a cake for a same-sex couple because the Colorado Civil Rights Commission expressed animus toward the baker’s religious beliefs. Here is a key excerpt from the Masterpiece decision:

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case

Sotomayor points out that the decision in Masterpiece is very hard to square with the decision issued on Tuesday by the court.

In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious 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 tolerance. Unlike in Masterpiece, where the majority considered 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 statements 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 community.’” Santa Fe, 530 U. S., at 309.

Roberts, writing for the majority, recognizes the power of Sotomayor’s argument and attempts to distinguish the two cases. Roberts argues that Trump’s Muslim ban has a different standard of review because the court “circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen” under a case called Mandel. The majority argues that, unlike Masterpiece, the only appropriate inquiry is whether the order is “facially legitimate and bona fide.” In other words, since the actual text of Trump’s executive order doesn’t explicitly mention discrimination against Muslims, it passes muster.


Sotomayor, however, has a compelling response. The case in Mandel involved the government denying a single individual admission — meaning the broad issue of religious discrimination was not at play. The case, Sotomayor notes, “did not purport to establish the framework for adjudicating cases (like this one) involving claims that the Executive Branch violated the Establishment Clause by acting pursuant to an unconstitutional purpose.” In doing so, the majority gives the president a virtual carte blanche to broadly restrict immigration for a discriminatory purpose, as long as the particular document implementing the order doesn’t explicitly acknowledge the purpose.

That, Sotomayor concludes, empowers the president to “defy our most sacred legal commitments.”