Back before there was the legal case United States v. Trump, there was Hawaii v. Trump.
This episode is like a matter-anti matter explosion. Regina Spektor is one of the deepest and most thoughtful humans on the planet, and one of the most talented musicians to boot. Her music can bring you to tears with its celebration of life and emotion. She and I discuss one of the lowest points for the Supreme Court in recent memory, Hawaii v. Trump, where the Supreme Court upheld Trump’s severe restrictions on countries that were overwhelmingly Muslim.
On December 7, 2015 (note the date), candidate Donald Trump called for "a total and complete shutdown of Muslims entering the United States.” 5 days into his Administration, he implemented it, leading to mass protests at airports.
That travel ban got struck down by the Courts. Trump created a new one. That one got struck down by courts. Trump created another one. And that third one is the one that went to the Supreme Court.
The Supreme Court, in a 5-4 decision written by Chief Justice Roberts, upheld the third ban. Chief Justice Roberts found that the ban was constitutional, arguing that it neither exceeded the executive power of the Presidency nor violated the First Amendment. Justice Breyer issued a dissent examining the Proclamation’s system of waivers and exemptions. In her more dissent, Justice Sotomayor rebuffed Roberts’ argument, connecting then-candidate Trump’s Islamophobic rhetoric to the ensuing travel ban and suggesting parallels to the Japanese internment cases. While the ban only lasted for four years, its impact was enormous; families were separated, dreams were crushed, and perhaps most disturbingly, the Court set a dangerous legal precedent. To me, as I wrote about in Yale Law Journal, it was a resurrection of the Korematsu case, where the Court upheld the Japanese American internment on grounds of national security. (Please keep in mind, I argued the Hawaii case in the Supreme Court and the lower courts, and have strong feelings, and some good stories I share here.). I have always felt the Supreme Court got Korematsu wrong, but part of the blame rests with the Solicitor General at the time, who lied to the Supreme Court.
Regina, herself a refugee, is the perfect guest to discuss the human impact of a decision like Trump v Hawaii. I can’t wait for you to listen in, for what she says about the promise of America is so moving.
Regina came to my oral argument this year in Moore v. Harper, and this is her outside the Court:
And this is Regina after the oral argument, with the Solicitor General:
Paid subscribers will have access to all the written materials and summary of the decision, along with a bonus episode discussing Regina’s tips for overcoming stage fright.
This is a 3 pager on the decision:
This is an abridged version of the decision
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This is the full decision
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Courtside Episode 7 with Regina Spektor