David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. His most recent book is Engines of Liberty: How Citizen Movements Succeed. (July 2018)
“It is a general rule that [religious and philosophical] objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” So wrote Justice Anthony Kennedy for the majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which …
Jeff Sessions has dramatically transformed the Justice Department, effectively causing it to renege on its historic mission of defending civil rights. He has fiercely defended the administration’s most unconstitutional initiatives, including a blatantly anti-Muslim immigration ban and a policy of denying teenage immigrants in federal custody access to abortion. He has reversed his own long-standing support for state’s rights to attack cities and states that have chosen, as is their constitutional prerogative under the Tenth Amendment, to leave enforcement of federal immigration law to federal officials. He is poised to overrule an immigration court decision that victims of domestic abuse and gang violence may obtain asylum here, an action that could turn away thousands of abuse victims each year. And he has overseen the appointment of a large number of deeply conservative—and overwhelmingly white and male—federal judges.
Supreme Court nominees all too often avoid answering questions about their views by simply describing existing Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them. But in speeches and writings while a judge, Brett Kavanaugh has repeatedly expressed his own views on many matters that might come before him, including whether presidents should be subject to civil and criminal lawsuits; if he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing. Here, then, are ten questions I suggest the senators ask Kavanaugh.
Chief Justice John Roberts proclaimed that “Korematsu has nothing to do with this case.” He went on to write that Korematsu v. United States, the 1944 decision that backed the internment of Japanese citizens and immigrants based on their race, “was gravely wrong the day it was decided, has been overruled in the court of history and—to be clear—has no place in law under the Constitution.” Strong words. But actions speak louder. Even as he acknowledged the court’s error in Korematsu, Roberts repeated it, virtually verbatim, in Trump v. Hawaii.
The Supreme Court has sometimes deferred to the political branches on matters of immigration and national security policy, but never on religious bias. And the constitutional case against the travel ban is overwhelmingly strong. The Establishment Clause of the First Amendment not only prohibits the government from making any law “respecting an establishment of religion,” it also forbids the government from singling out for disfavor any particular religion. Yet that is precisely what Trump’s travel ban does.
In a weak democracy, an authoritarian leader like Trump could do widespread and lasting damage. Such leaders often control the legislature, are immune from court oversight, and suppress civil society institutions. But our hallowed traditions of judicial independence, civil liberties, and a robust political culture have—thus far, at least—held Trump in check to an important degree. The courts cannot stand up to President Trump alone, however, and it would be a great mistake to think they could. In the end, the most important guardian of liberty is an engaged citizenry.