Quieting the Court: Lessons from The Muslim Ban Case
23 J. Gender, Race & Just. 1 (2020).
The Supreme Court’s Muslim-ban decision in Trump v. Hawaii calls into question the civil rights litigation enterprise insofar as lawsuits challenge the U.S. government’s injurious national security and immigration policies. Litigants and advocacy organizations should employ an array of strategies and tactics to avoid the Court’s rulings that almost uniformly defer to, and thus validate, the government’s national security and immigration practices.
This article maintains that The Muslim-Ban Case was a predictable outgrowth of the Supreme Court’s national security-immigration jurisprudence that champions executive power at the expense of marginalized groups, in particular non-citizens. The article provides a typology of these cases’ features and examines how The Muslim-Ban Case exhibits these same characteristics but also exceeds recent precedents in its disregard of the ban’s bigoted motivations and its excessive deference to the President.
In light of The Muslim-Ban Case and the judiciary’s conservative trajectory, this article proposes that civil rights lawyers and legal advocacy organizations assess whether their litigation risks validating the President’s arrogation of power and the concomitant suppression of minority groups’ liberties. Recognizing the at-times life-saving and moral necessity of litigation, this article first offers discrete litigation strategies that may avoid future adverse decisions. The article then examines extra-judicial forms of advocacy that groups and individuals may adopt in order to secure and develop marginalized groups members’ liberties. This project entails challenging the current legal rights framework’s underlying ideas of American identity, which privileges national sovereignty and citizenship. The article proposes a more inclusive framework that imposes duties on the state to non-citizens through connections of family and on the basis of universal values.