As the Supreme Court upheld President Donald Trump’s travel ban by a margin of 5-4 on Tuesday, it was two of its female justices—Sonia Sotomayor and Ruth Bader Ginsburg—who provided the harshest critiques of both the ruling and the policy itself.
As a refresher, this version of the travel ban (the administration’s third) restricts entry into the United States from seven countries, many of which have majority Muslim populations: Iran, North Korea, Syria, Libya, Yemen, Somalia, and Venezuela. The rules for entry vary by country. For example, immigrants (even those seeking asylum) and non-immigrants from Syria are barred from entering the country, but most Venezuelans will be unaffected. (Per CNN, the ban will mostly affect government officials from that country.)
Citizens from banned countries are able to apply for waivers on a case-by-case basis, like traveling to the US for medical treatment, or to visit a close family member. But The Guardian reports that there are a very limited number of waivers actually being granted.
Sotomayor, who was joined by Ginsburg in her dissent, boldly stated that the court failed to uphold the fundamental right of freedom of religion in her opening remarks. “The United States of America is a Nation built upon the promise of religious liberty,” she wrote. “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.”
She continues by calling the ban one that is designed to keep Muslims out of the country and calls out attempts to repackage it. “It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”
Sotomayor calls out fellow justices in the majority saying they are “turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
And the justices were not afraid to mention the president directly in their formal dissent.
“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,” the dissent reads. “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.”
Sotomayor did not shy away from noting the instances of Trump calling the policy a “travel ban” and his negative remarks about Islam and Muslims. “Despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam. Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers.”
“History will not look kindly on the court’s decision today—nor should it,” Sotomayor concluded.
While many applauded the justices’ passion in calling out the bigotry in the policy and ruling, the New York Times classified Sotomayor as having “lashed out” against President Trump in a tweet—and Twitter users were not happy about it.
You can read the full dissent here.
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