Anti-Muslim Racism beyond Islamophobia

In June 2018 the US Supreme Court affirmed the constitutionality of Donald Trump's Presidential Proclamation No. 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats."¹ Trump's own vitriolic anti-Muslim statements about a policy colloquially known as the Muslim Ban had been a major part of his candidacy, and advocates and critics alike framed the proclamation as keeping Trump's campaign promise of either a "total and complete shutdown of Muslims entering the country," or at least "extreme vetting" of prospective visa recipients.² After numerous legal challenges and significant public pressure, including massive protests at US airports when the first iteration of the order went into effect, the policy brought before the Court placed heavy entry restrictions on nationals from Iran, Libya, Syria, Yemen, Venezuela, and North Korea.

The Court rests its decision in Trump v. Hawaii on the "authority of the Presidency itself" (29). Writing for the majority, Chief Justice John Roberts argues that the proclamation is predicated on national security concerns, and such matters fall squarely under the purview of executive power. While acknowledging that "this President's words strike at fundamental standards of respect and tradition" (29), Roberts finds such discursive bluster constitutionally immaterial. Since the proclamation is "facially neutral" toward religion (29), it neither contravenes the Constitution's protection of religious freedom nor runs afoul of the Immigration and Nationality Act's antidiscrimination clauses. In her blistering dissent, Justice Sonia Sotomayor disagrees with Roberts's assessment, focusing on how, from its inception, the proclamation carried a "discriminatory taint" premised on President Trump's "apparent hostility towards the Islamic faith" (12). Based on a litany of Trump's statements as candidate and then as president, Sotomayor argues that "a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus" (1). The Court's decision "fails to safeguard" the First Amendment "promise of religious liberty" (1).

Trump v. Hawaii's majority and dissenting opinions are diametrically opposed in their final views. Anti-Muslim speech acts are either inconsequential when it comes to what appears as a facially neutral policy, or they are the reflection of an unconstitutional form of religious discrimination. Yet both opinions share one crucial, if unspoken, assumption: the proclamation is racially color-blind. Debates about race and racism are almost wholly invisible in the majority opinion, the dissent, or indeed the dozens of amicus curiae briefs filed in the case. Almost, that is, except for one small thread: the specter summoned by Justice Sotomayor of the 1944 Supreme Court ruling in Korematsu that upheld Executive Order 9066 authorizing the mass internment of US citizens of Japanese descent. Both Sotomayor and Roberts recognize Korematsu as predicated on a "gravely injurious racial classification" (26). Sotomayor seizes on the "dangerous logic" (28) that echoes the racial discrimination of the past in the religious discrimination of today. Roberts swiftly suggests that Korematsu "has been overruled in the court of history" (38) even as he asserts its irrelevance for adjudicating a "facially neutral policy denying certain foreign nationals the privilege of admission" (38).

The opinions in Trump v. Hawaii exemplify a juridically narrow sense of the concept of race. What might...