Blog Post

Against Hate: The US Supreme Court, Islam, and Justice in a Xenophobic Age (IV)

Graphics by Michelle Jia : Image Flickr ( I, II )

The U.S. Supreme Court has issued a decision to legalize the ban on five Muslim countries. This ruling prevents part of the Muslim population from entering the US on the pretext that they pose a potential security threat to our country. One wonders to what extent this assumption of a national security threat is reasonable and what body of evidence supports it. How many American citizens, separated from their families, will suffer from this ruling? How many more lives will be shattered? How many children will be separated from their parents?

To be sure, not all the justices agreed to uphold Trump’s travel ban. It was a close 5-4 vote. Of the four justices who voted against it, Justices Sonia Sotomayor and Ruth Bader Ginsburg, dissented and compared the majority’s vote to Korematsu, the infamous Supreme Court case that upheld the internment of 100,000 Japanese in the 1940s. Justice John Roberts, who authored the majority opinion in Trump v. Hawaii, was strongly supported by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Anthony Kennedy. All five of them dismissed a well-documented argument that the travel ban and its waiver program were unlawful. They argued instead that the ban is fair and a standard directive falling “squarely within the scope of Presidential authority” and that “the President has inherent [italics Justice Thomas’s] authority to exclude aliens from the country.” It was further concluded that “the plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad.” All evidence of anti-Muslim discrimination presented in the case was dismissed as “unpersuasive.”

A decision that will change the fate of millions of Muslims does not “conclude” that those Muslims are a potential threat to national security. But much like the trade war declared on Canada, this ruling creates a situation in which the tattered clothes of national security once again hid the vicious monstrosity of partisan politics. The organic, independent, and impartial body of the Supreme Court, the official guardian of the Constitution, has made a decision that embodies both the reality of the political moment and its illusion at the same time. The reality is that we are living in one of the most divisive times in recent political history. The illusion is that within this divisiveness, the law, in its most sublime embodiment has turned into the last straw, drowning citizens’ rights and denying families basic human rights to belong together. The ‘validity’ of this decision arises from the politics of ‘confirmation’ and partisan loyalties, telling the truth about the US today, that is, revealing that there is something deeply rotten in this interpretation of the law, which appears to be based on ideology, rather than on fact.

During his campaign, then-candidate Trump made the following promise to his base: “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 the hell is going on.” The statement was immediately welcomed with enthusiastic applause from the audience. This statement remained on Trump’s campaign website until May 2017. It was taken down only after the President issued the first two executive orders.

The President also stated on Public TV that “Islam hates us” and reiterated that the United States is “having problems with Muslims coming into the country.” Shortly after being elected, Trump was asked whether circumstances in Europe had influenced his plans to “ban Muslim immigration,” to which he replied, “You know my plans. All along, I’ve been proven to be right.” One week after his inauguration, the President issued his promised ban. Rudi Giuliani, who at time was one of the President’s campaign advisers, stated in a TV interview that when the President “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.’”

Unfortunately, the conservative majority on the Supreme Court refused to connect the dots and decided that there should be no connection between the rhetoric of campaign promises and the right of the President to exercise his authority. Justice Kennedy concurred in judgment and joined the Court’s opinion in upholding the ban in full. The irony is startling. In his decision to uphold the anti-Muslim ban, Justice Kennedy reminds Government officials that they are not free to disregard the Constitution. But the reality is that Justice Kennedy’s concurrence has authorized Government officials to disregard the articles of the very Constitution that it sets to uphold and protect. This is the worst form of ideology, no longer an ideology of confusing linguistic with natural reality, but rather an ideology that defaces the real and dissolves it into pragmatic legality. The Muslim ban, a postulate of bigotry, has now become the law of the land, a real executable force on Muslim Americans, who are now officially, legally, and irrefutably, second-class citizens in their own homeland.

How a Muslim ban that rocked the nation for over a year in its various iterations—a ban that epitomizes a promised anti-Muslim crusade— is not a violation of the Establishment Clause of the First Amendment is beyond comprehension. How Justice Kennedy overlooked the fact that banning Muslims (which has nothing to do with national security, is an exercise in racial superiority, and goes against the freedom of religion) is the latest failure the Supreme Court has penned indelibly onto the unforgiving walls of history.

If this ban does not violate the Establishment Clause which safeguards religious neutrality, why then wouldn’t the government apply the exemption and waiver system to Muslim applicants who satisfy the security and information terms stated in the Proclamation? The answer is unequivocally clear: the Proclamation is a “Muslim” ban, not a “national-security” ban. The poor Yemeni child with cerebral palsy who could not move or speak and whose doctors said she would not survive in Yemen must have been too dangerous for national security to be allowed entry into the US to receive treatment. She was told that “a waiver will not be granted in your case.” It was only after her case received embarrassing international highlighting that a waiver was finally granted.

An anxious world needs healing not lecturing or a scolding statement, and definitely not a hackneyed confirmation of the status quo. In the aftermath of Justice Kennedy’s concurrence, an anxious world has seen that despite its freedom and autonomy, the conservative judiciary is not immune to bias, especially against citizens who hold beliefs contrary to their own. For all these reasons, an anxious world has grown exponentially more anxious.

The terms and spirit of the First Amendment are clear. They almost remove any possibility for misinterpretation. I say “almost” because in language there is always a chance for a misreading. If this misreading comes from the justices of the Supreme Court who are confirmed and sworn to protect the Constitution, then American citizens have every reason to be concerned. Muslim American minorities have every reason to be alarmed because we connect the dots. We may disagree about the interpretation of a work of art, but not on the laws that safeguard human dignity and freedom. Justice Kennedy’s concurrence does not change our minds, nor does it whitewash the tremendous animosity toward Muslims under the current administration. The Supreme Court’s decision will hurt millions of Americans citizens. By upholding the Muslim ban, the conservative justices have abandoned their responsibility towards the Constitution. They were not asked to consider the authority of the President or the political discourses of the administration. They are not charged with looking for personal gain or with protecting their own political party. They are freed from any pressure whatsoever precisely in order to uphold the Constitution. They are free to be responsible and responsible to see that our dearly won freedom prevails, especially in the face of subversive politics determined to demonize minorities. That freedom is guaranteed by the very Constitution now betrayed with serious repercussions for Muslims and all our citizens.

Mohammad Salama's picture
Professor of Arabic, San Francisco State University
I received my PhD in Comparative Literature from the University of Wisconsin-Madison in 2005. I was born in Alexandria, Egypt where I spent my childhood and adolescent years. After High School, I moved to Cairo to study at ‘Ayn Shams University, where I studied classical and modern Arabic and received my BA and MA in Literature and Translation. I am a recipient of two Fulbright Scholar Awards. My interests include modern and classical Arabic literature, Quranic Studies, Comparative Cultural Studies in the colonial and post-colonial Arab world, as well as French and Egyptian cinemas. I have published in scholarly venues that include der Islam, SCTIW Review, JAL, ASJ, ALIF, and AHR. My book Islam, Orientalism, and Intellectual History (I.B. Tauris) and the co-edited volume, German Colonialism (Columbia UP) both appeared in 2011. My forthcoming books, The Qur'an and Modern Arabic Literary Criticism: From Taha to Nasr (Bloomsbury ) and Islam and the Culture of Modern Egypt (Cambridge UP) will both appear in 2018.