The Supreme Court of the United States ruled today to uphold the Trump administration’s travel ban targeting Muslim-majority countries. The current version suspends and restricts entry for immigrants, refugees and even visa holders from Libya, Somalia, Syria, Yemen, Iran, North Korea and Venezuela; the latter two countries were added after the ban was contested in the courts for violating the First Amendment.
The decision came squarely down on party lines, with justices appointed by Republican presidents ruling in favor, and those appointed by Democrats dissenting.
The ruling, in many ways, came down to the question of context. What was the real motivation for the ban? Should Trump’s anti-Muslim tweets and statements be taken into account, or not? Should we believe the language of an executive order that cites national security concerns as its raison d’être?
Chief Justice John Roberts relied on the language of the ban itself. He suggested that, though the ban is directed at five predominantly Muslim countries, “that fact alone does not support an inference of religious hostility.”
Justice Sonia Sotomayor issued a fiery dissent, looking to the larger context of Trump’s statements over the last few years—for example, his statements as a candidate that “Islam hates us,” and promise for a “total and complete shut down of Muslims entering the United States,” his retweeting of anti-Muslim hate videos, and his use of the song “The Snake” at rallies.
Do we take people at their words? Or do we follow the advice of the great Maya Angelou, “When someone shows you who they are, believe them”?
“Why is it [Edom] compared to a pig? Because just as the swine, when reclining, puts forth its hooves as if to say, ‘See that I am clean,’ so too does the empire of Edom boast as it commits violence and robbery, under the guise of establishing a judicial tribunal. This may be compared to a governor who put to death the thieves, adulterers, and sorcerers. He leaned over to an advisor and said: ‘I myself did all these three things in one night.’”
The pig, here, claims to be kosher, just as, according to the Rabbis, Rome commits violence and robbery under the guise of doing justice. What Rome claims to do and what it actually does are not one and the same.
It is certainly the case that despite being ratified by the Supreme Court, no great justice will be done with this travel ban; refugees fleeing war, drought, famine and other humanitarian crises will be denied a way out of suffering and, for some, certain death. People who assist the U.S. Army in fighting terrorism may be trapped in home countries hostile to their efforts. There are around 7,000 doctors from the countries named; we may find a shortage of medical care, especially in rural areas. Families will be separated.
And this ban is unlikely to have a meaningful impact on terrorism. Egypt, Saudi Arabia and the United Arab Emirates were the point of origin for those who caused 94% of American deaths from terrorism; 18 out of 19 of those responsible for the 9/11 attacks came from those countries.
They are conspicuously absent from the ban; as it happens, they’re all countries in which Trump has business dealings.
One could imagine the governor in the midrash conducting his judicial tribunal in a similar fashion, with similar disinterest in harm perpetrated and a similar inclination to protect his own pocket.
I’m grateful to be part of a Jewish community that understands that human rights, human safety and the preservation of life are the bedrock values of our tradition, and that sees the injustice and danger of singling out groups of people based on their religion or country of origin.
And our history has told us that just because an animal tells us that it is kosher, we should look carefully to see what it’s really made out of.
Justice Sotomayor writes,
“Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”
The whole Jewish community should dissent along with her.
Danya Ruttenberg is author of “Nurture the Wow: Finding Spirituality in the Frustration, Boredom, Tears, Poop, Desperation, Wonder, and Radical Amazement of Parenting” and Rabbi-in-Residence at Avodah.