Δαφνη Ευτυχια Αρθουρος

Selected excerpts from Sonia Sotomayor, dissenting opinion, Donald J. Trump v. Hawaii, 2018-06-26, joined by Notorious RBG (her dissent is pp. 65-92 of the PDF -- internal page numbers restart for each opinion/dissent, so page numbers shown run 1-28 [Justice Breyer's dissent (with Justice Kagan) is on pp 57-64 of the PDF]:

The United States of America is a Nation built upon thepromise of religious liberty. 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.

[...]

Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation. The Government also offers no evidence that this current vetting scheme, which involves a highly searching consideration of individuals required to obtain visas for entry into the United States and a highly searching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is inadequate to achieve the Proclamation's proclaimed objectives of "preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their [vetting and information-sharing] practices."

[...]

In addition, the Proclamation permits certain nationals from the countries named in the Proclamation to obtain nonimmigrant visas, which undermines the Government's assertion that it does not already have the capacity and sufficient information to vet these individuals adequately.

[...]

The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation's deep commitment to religious plurality and tolerance. That constitutional promise is why, "[f]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom." [...] Instead of vindicating those principles, today's decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court's precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.

[...]

Today's holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Japanese American Citizens League as Amicus Curiae. In Korematsu, the Court gave "a pass [to] anodious, gravely injurious racial classification" authorizedby an executive order. p...] As here, the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion. [...] As here, the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group's supposed inability to assimilate and desire to harm the United States. [...] As here, the Government was unwilling to reveal its own intelligence agencies' views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418-1419 (ND Cal.1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17-19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35-36, and n. 5 (noting that the Government "has gone to great lengths to shield [the Secretary of Homeland Security's] report from view"). And as here, there was strong evidence that impermissible hostility and animus motivated the Government's policy.

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. [...] Today, the Court takes the importantstep of finally overruling Korematsu, denouncing it as "gravely wrong the day it was decided." [...] This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting theGovernment’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavoredgroup, all in the name of a superficial claim of nationalsecurity, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one "gravelywrong" decision with another.

[Inline elisions are mostly citations, elisions between paragraphs are mostly skipping ahead in the text. (There may be a couple of the latter inline as well).]