Then it was Justice Sonia Sotomayor’s turn.

Steely and unwavering, she began: “The United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.”

++++

Confirmation hearing to begin before the November elections

Contentious confirmation guaranteed

++++

Full Text of Justice Sotomayor’s Dissent

Cite as: 585 U. S. ____ (2018) 1

SOTOMAYOR, J., dissenting; SUPREME COURT OF THE UNITED STATES; No. 17–965

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.

The United States of America is a Nation built upon the promise 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. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now
masquerades behind a façade of national-security concerns.

But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. 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 the 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.

++++

SOTOMAYOR, J., dissenting; Continued

Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitutional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one.

Whatever the merits of plaintiffs’ complex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Establishment Clause’s guarantee of religious neutrality.

A
The Establishment Clause forbids government policies
“respecting an establishment of religion.” U. S. Const.,
Amdt. 1. The “clearest command” of the Establishment
Clause is that the Government cannot favor or disfavor
one religion over another.

++++

Larson v. Valente, 456 U. S.  228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amendment forbids an official purpose to disapprove of a particular religion”); Edwards v. Aguillard, 482 U. S. 578, 593
(1987) (“The Establishment Clause . . . forbids alike the
preference of a religious doctrine or the prohibition of
theory which is deemed antagonistic to a particular dogma”
(internal quotation marks omitted)); Lynch v. Donnelly,

465 U. S. 668, 673 (1984) (noting that the Establishment
Clause “forbids hostility toward any [religion],” because
“such hostility would bring us into ‘war with our national
tradition as embodied in the First Amendmen[t]’”); Epper
son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State
may not adopt programs or practices . . . which aid or
oppose any religion.

This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevitabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370 U. S. 421, 431 (1962). That is so, this Court has held,
because such acts send messages to members of minority
faiths “‘that they are outsiders, not full members of the
political community.’” Santa Fe Independent School Dist.
v. Doe, 530 U. S. 290, 309 (2000).

To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246;
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U. S. 687, 703 (1994) (recognizing the role of courts in
“safeguarding a principle at the heart of the Establishment
Clause, that government should not prefer one religion
to another, or religion to irreligion”).
“When the government acts with the ostensible and
predominant purpose” of disfavoring a particular religion,
“it violates that central Establishment Clause value of
official religious neutrality, there being no neutrality
when the government’s ostensible object is to take sides.”
McCreary County v. American Civil Liberties Union of Ky.,
545 U. S. 844, 860 (2005). To determine whether plaintiffs
have proved an Establishment Clause violation, the Court
asks whether a reasonable observer would view the government
action as enacted for the purpose of disfavoring a
religion. See id., at 862, 866; accord, Town of Greece v.
Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip
op., at 19).

In answering that question, this Court has generally
considered the text of the government policy, its operation,
and any available evidence regarding “the historical background
of the decision under challenge, the specific series
of events leading to the enactment or official policy in
question, and the legislative or administrative history,
including contemporaneous statements made by” the decisionmaker.

Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation. . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a
drafter’s heart of hearts.” Id., at 862.

B
1
Although the majority briefly recounts a few of the
statements and background events that form the basis of
plaintiffs’ constitutional challenge, ante, at 27–28, that
highly abridged account does not tell even half of the
story. See Brief for The Roderick & Solange MacArthur
Justice Center as Amicus Curiae 5–31 (outlining President
Trump’s public statements expressing animus toward
Islam). The full record paints a far more harrowing picture,
from which a reasonable observer would readily
conclude that the Proclamation was motivated by hostility
and animus toward the Muslim faith.
During his Presidential campaign, then-candidate Donald
Trump pledged that, if elected, he would ban Muslims
from entering the United States. Specifically, on December
7, 2015, he issued a formal statement “calling for a
total and complete shutdown of Muslims entering the
United States.” App. 119. That statement, which remained
on his campaign website until May 2017 (several
months into his Presidency), read in full:
“Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States until
our country’s representatives can figure out what is
going on. According to Pew Research, among others,
there is great hatred towards Americans by large
segments of the Muslim population. Most recently, a
poll from the Center for Security Policy released data

Cite as: 585 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
showing ‘25% of those polled agreed that violence
against Americans here in the United States is justified
as a part of the global jihad’ and 51% of those
polled ‘agreed that Muslims in America should have
the choice of being governed according to Shariah.’
Shariah authorizes such atrocities as murder against
nonbelievers who won’t convert, beheadings and more
unthinkable acts that pose great harm to Americans,
especially women.
“Mr. Trum[p] stated, ‘Without looking at the various
polling data, it is obvious to anybody the hatred is
beyond comprehension. Where this hatred comes
from and why we will have to determine. Until we are
able to determine and understand this problem and
the dangerous threat it poses, our country cannot be
the victims of the horrendous attacks by people that
believe only in Jihad, and have no sense of reason or
respect of human life. If I win the election for President,
we are going to Make America Great Again.’—
Donald J. Trump.” Id., at 158; see also id., at 130–
131.
On December 8, 2015, Trump justified his proposal
during a television interview by noting that President
Franklin D. Roosevelt “did the same thing” with respect to
the internment of Japanese Americans during World War
II. Id., at 120. In January 2016, during a Republican
primary debate, Trump was asked whether he wanted to
“rethink [his] position” on “banning Muslims from entering
the country.” Ibid. He answered, “No.” Ibid. A
month later, at a rally in South Carolina, Trump told an
apocryphal story about United States General John J.
Pershing killing a large group of Muslim insurgents in the
Philippines with bullets dipped in pigs’ blood in the early
1900’s. Id., at 163–164. In March 2016, he expressed his
belief that “Islam hates us. . . . [W]e can’t allow people

6 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
coming into this country who have this hatred of the United
States . . . [a]nd of people that are not Muslim.” Id., at
120–121. That same month, Trump asserted that “[w]e’re
having problems with the Muslims, and we’re having
problems with Muslims coming into the country.” Id., at
121. He therefore called for surveillance of mosques in the
United States, blaming terrorist attacks on Muslims’ lack
of “assimilation” and their commitment to “sharia law.”
Ibid.; id., at 164. A day later, he opined that Muslims “do
not respect us at all” and “don’t respect a lot of the things
that are happening throughout not only our country, but
they don’t respect other things.” Ibid.
As Trump’s presidential campaign progressed, he began
to describe his policy proposal in slightly different terms.
In June 2016, for instance, he characterized the policy
proposal as a suspension of immigration from countries
“where there’s a proven history of terrorism.” Id., at 121.
He also described the proposal as rooted in the need to
stop “importing radical Islamic terrorism to the West
through a failed immigration system.” Id., at 121–122.
Asked in July 2016 whether he was “pull[ing] back from”
his pledged Muslim ban, Trump responded, “I actually
don’t think it’s a rollback. In fact, you could say it’s an
expansion.” Id., at 122–123. He then explained that he
used different terminology because “[p]eople were so upset
when [he] used the word Muslim.” Id., at 123.
A month before the 2016 election, Trump reiterated that
his proposed “Muslim ban” had “morphed into a[n] extreme
vetting from certain areas of the world.” Ibid.
Then, on December 21, 2016, President-elect Trump was
asked whether he would “rethink” his previous “plans to
create a Muslim registry or ban Muslim immigration.”
Ibid. He replied: “You know my plans. All along, I’ve
proven to be right.” Ibid.
On January 27, 2017, one week after taking office,
President Trump signed Executive Order No. 13769, 82

Cite as: 585 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the
Nation From Foreign Terrorist Entry Into the United
States.” As he signed it, President Trump read the title,
looked up, and said “We all know what that means.” App.
124. That same day, President Trump explained to the
media that, under EO–1, Christians would be given priority
for entry as refugees into the United States. In particular,
he bemoaned the fact that in the past, “[i]f you were a
Muslim [refugee from Syria] you could come in, but if you
were a Christian, it was almost impossible.” Id., at 125.
Considering that past policy “very unfair,” President
Trump explained that EO–1 was designed “to help” the
Christians in Syria. Ibid. The following day, one of President
Trump’s key advisers candidly drew the connection
between EO–1 and the “Muslim ban” that the President
had pledged to implement if elected. Ibid. According to
that adviser, “[W]hen [Donald Trump] first announced it,
he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it
legally.’” Ibid.
On February 3, 2017, the United States District Court
for the Western District of Washington enjoined the enforcement
of EO–1. See Washington v. Trump, 2017 WL
462040, *3. The Ninth Circuit denied the Government’s
request to stay that injunction. Washington v. Trump, 847
F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal
the Ninth Circuit’s decision, the Government declined to
continue defending EO–1 in court and instead announced
that the President intended to issue a new executive order
to replace EO–1.
On March 6, 2017, President Trump issued that new
executive order, which, like its predecessor, imposed temporary
entry and refugee bans. See Exec. Order No.
13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s
senior advisers publicly explained that EO–2 would “have
the same basic policy outcome” as EO–1, and that any

8 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
changes would address “very technical issues that were
brought up by the court.” App. 127. After EO–2 was
issued, the White House Press Secretary told reporters
that, by issuing EO–2, President Trump “continue[d] to
deliver on . . . his most significant campaign promises.”
Id., at 130. That statement was consistent with President
Trump’s own declaration that “I keep my campaign promises,
and our citizens will be very happy when they see the
result.” Id., at 127–128.
Before EO–2 took effect, federal District Courts in Hawaii
and Maryland enjoined the order’s travel and refugee
bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239
(Haw. 2017); International Refugee Assistance Project
(IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017).
The Fourth and Ninth Circuits upheld those injunctions in
substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4
2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789
(CA9 2017) (per curiam). In June 2017, this Court granted
the Government’s petition for certiorari and issued a per
curiam opinion partially staying the District Courts’ injunctions
pending further review. In particular, the Court
allowed EO–2’s travel ban to take effect except as to “foreign
nationals who have a credible claim of a bona fide
relationship with a person or entity in the United States.”
Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).
While litigation over EO–2 was ongoing, President
Trump repeatedly made statements alluding to a desire to
keep Muslims out of the country. For instance, he said at
a rally of his supporters that EO–2 was just a “watered
down version of the first one” and had been “tailor[ed]” at
the behest of “the lawyers.” App. 131. He further added
that he would prefer “to go back to the first [executive
order] and go all the way” and reiterated his belief that it
was “very hard” for Muslims to assimila

Cite as: 585 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
Snake,” a song about a woman who nurses a sick snake
back to health but then is attacked by the snake, as a
warning about Syrian refugees entering the country. Id.,
at 132, 163. And in June 2017, the President stated on
Twitter that the Justice Department had submitted a
“watered down, politically correct version” of the “original
Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The
President went on to tweet: “People, the lawyers and the
courts can call it whatever they want, but I am calling it
what we need and what it is, a TRAVEL BAN!” Id., at
132–133. He added: “That’s right, we need a TRAVEL
BAN for certain DANGEROUS countries, not some politically
correct term that won’t help us protect our people!”
Id., at 133. Then, on August 17, 2017, President Trump
issued yet another tweet about Islam, once more referencing
the story about General Pershing’s massacre of Muslims
in the Philippines: “Study what General Pershing . . .
did to terrorists when caught. There was no more Radical
Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d
233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in
original).
In September 2017, President Trump tweeted that “[t]he
travel ban into the United States should be far larger,
tougher and more specific—but stupidly, that would not be
politically correct!” App. 133. Later that month, on September
24, 2017, President Trump issued Presidential
Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation),
which restricts entry of certain nationals from
six Muslim-majority countries. On November 29, 2017,
President Trump “retweeted” three anti-Muslim videos,
entitled “Muslim Destroys a Statue of Virgin Mary!”,
“Islamist mob pushes teenage boy off roof and beats him to
death!”, and “Muslim migrant beats up Dutch boy on
——————
1According to the White House, President Trump’s statements on
Twitter are “official statements.” App. 133.

10 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
crutches!”2 IRAP II, 883 F. 3d, at 267. Those videos were
initially tweeted by a British political party whose mission
is to oppose “all alien and destructive politic[al] or religious
doctrines, including . . . Islam.” Ibid. When asked
about these videos, the White House Deputy Press Secretary
connected them to the Proclamation, responding that
the “President has been talking about these security issues
for years now, from the campaign trail to the White
House” and “has addressed these issues with the travel
order that he issued earlier this year and the companion
proclamation.” Ibid.
2
As the majority correctly notes, “the issue before us is
not whether to denounce” these offensive statements.
Ante, at 29. Rather, the dispositive and narrow question
here is whether a reasonable observer, presented with all
“openly available data,” the text and “historical context” of
the Proclamation, and the “specific sequence of events”
leading to it, would conclude that the primary purpose of
the Proclamation is to disfavor Islam and its adherents by
excluding them from the country. See McCreary, 545
U. S., at 862–863. The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonable
observer would conclude that the Proclamation was driven
primarily by anti-Muslim animus, rather than by the
——————
2The content of these videos is highly inflammatory, and their titles
are arguably misleading. For instance, the person depicted in the video
entitled “Muslim migrant beats up Dutch boy on crutches!” was report
edly not a “migrant,” and his religion is not publicly known. See Brief
for Plaintiffs in International Refugee Assistance Project v. Trump as
Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam
­
­
matory Anti-Muslim Videos, and Britain’s Leader Condemns Them,
N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are
Dutch”), https://www.nytimes.com/2017/11/29/us /politics /trumpanti-muslim-videos-jayda-fransen.html
(all Internet materials as last
visited June 25, 2018).

Cite as: 585 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
Government’s asserted national-security justifications.
Even before being sworn into office, then-candidate Trump
stated that “Islam hates us,” App. 399, warned that
“[w]e’re having problems with the Muslims, and we’re
having problems with Muslims coming into the country,”
id., at 121, promised to enact a “total and complete shutdown
of Muslims entering the United States,” id., at 119,
and instructed one of his advisers to find a “lega[l]” way to
enact a Muslim ban, id., at 125.3 The President continued
to make similar statements well after his inauguration, as
detailed above, see supra, at 6–10.
Moreover, despite several opportunities to do so, President
Trump has never disavowed any of his prior statements
about Islam.4 Instead, he has continued to make
——————
3The Government urges us to disregard the President’s campaign
statements. Brief for Petitioners 66–67. But nothing in our precedent
supports that blinkered approach. To the contrary, courts must consider
“the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in
question, and the legislative or administrative history.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion
of KENNEDY, J.). Moreover, President Trump and his advisers have
repeatedly acknowledged that the Proclamation and its predecessors
are an outgrowth of the President’s campaign statements. For exam
ple, just last November, the Deputy White House Press Secretary
reminded the media that the Proclamation addresses “issues” the
President has been talking about “for years,” including on “the campaign
trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as
the Fourth Circuit correctly recognized, even without relying on any of
the President’s campaign statements, a reasonable observer would
conclude that the Proclamation was enacted for the impermissible
purpose of disfavoring Muslims. Id., at 266, 268. 4At oral argument, the Solicitor General asserted that President
Trump “made crystal-clear on September 25 that he had no intention of
imposing the Muslim ban” and “has praised Islam as one of the great
countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record
contained no evidence of any such statement made on September 25th,
however, the Solicitor General clarified after oral argument that he
actually intended to refer to President Trump’s statement during a
­

12 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
remarks that a reasonable observer would view as an
unrelenting attack on the Muslim religion and its followers.
Given President Trump’s failure to correct the reasonable
perception of his apparent hostility toward the
Islamic faith, it is unsurprising that the President’s lawyers
have, at every step in the lower courts, failed in their
attempts to launder the Proclamation of its discriminatory
taint. See United States v. Fordice, 505 U. S. 717, 746–
747 (1992) (“[G]iven an initially tainted policy, it is eminently
reasonable to make the [Government] bear the risk
of nonpersuasion with respect to intent at some future
time, both because the [Government] has created the
dispute through its own prior unlawful conduct, and because
discriminatory intent does tend to persist through
time” (citation omitted)). Notably, the Court recently
found less pervasive official expressions of hostility and
the failure to disavow them to be constitutionally significant.
Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18)
(“The official expressions of hostility to religion in some of
the commissioners’ comments—comments that were not
disavowed at the Commission or by the State at any point
in the proceedings that led to the affirmance of the order—
——————
television interview on January 25, 2017. Letter from N. Francisco,
Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply
Brief 28, n. 8. During that interview, the President was asked whether
EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim
ban.” See Transcript: ABC News anchor David Muir interviews President
Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/
transcript-abc-news-anchor-david-muir-interviews-president/ story? id=
45047602. But that lone assertion hardly qualifies as a disavowal of
the President’s comments about Islam—some of which were spoken
after January 25, 2017. Moreover, it strains credulity to say that
President Trump’s January 25th statement makes “crystal-clear” that
he never intended to impose a Muslim ban given that, until May 2017,
the President’s website displayed the statement regarding his campaign
promise to ban Muslims from entering the country.

Cite as: 585 U. S. ____ (2018) 13
SOTOMAYOR, J., dissenting
were inconsistent with what the Free Exercise Clause
requires”). It should find the same here.
Ultimately, what began as a policy explicitly “calling for
a total and complete shutdown of Muslims entering the
United States” has since morphed into a “Proclamation”
putatively based on national-security concerns. But this
new window dressing cannot conceal an unassailable fact:
the words of the President and his advisers create the
strong perception that the Proclamation is contaminated
by impermissible discriminatory animus against Islam
and its followers.
II
Rather than defend the President’s problematic statements,
the Government urges this Court to set them aside
and defer to the President on issues related to immigration
and national security. The majority accepts that
invitation and incorrectly applies a watered-down legal
standard in an effort to short circuit plaintiffs’ Establishment
Clause claim.
The majority begins its constitutional analysis by noting
that this Court, at times, “has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly burdens
the constitutional rights of a U. S. citizen.” Ante, at
30 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972)). As
the majority notes, Mandel held that when the Executive
Branch provides “a facially legitimate and bona fide reason”
for denying a visa, “courts will neither look behind
the exercise of that discretion, nor test it by balancing its
justification.” Id., at 770. In his controlling concurrence
in Kerry v. Din, 576 U. S. ___ (2015), JUSTICE KENNEDY
applied Mandel’s holding and elaborated that courts can
“‘look behind’ the Government’s exclusion of ” a foreign
national if there is “an affirmative showing of bad faith on
the part of the consular officer who denied [the] visa.”
Din, 576 U. S., at ___ (opinion concurring in judgment)

14 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
(slip op., at 5). The extent to which Mandel and Din apply
at all to this case is unsettled, and there is good reason to
think they do not.5 Indeed, even the Government agreed
at oral argument that where the Court confronts a situation
involving “all kinds of denigrating comments about” a
particular religion and a subsequent policy that is designed
with the purpose of disfavoring that religion but
that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel
would not “pu[t] an end to judicial review of that set of
facts.” Tr. of Oral Arg. 16.
In light of the Government’s suggestion “that it may be
appropriate here for the inquiry to extend beyond the
facial neutrality of the order,” the majority rightly declines
——————
5 Mandel and Din are readily distinguishable from this case for a
number of reasons. First, Mandel and Din each involved a constitutional
challenge to an Executive Branch decision to exclude a single
foreign national under a specific statutory ground of inadmissibility.
Mandel, 408 U. S., at 767; Din, 576 U. S., at ___ (slip op., at 1). Here,
by contrast, President Trump is not exercising his discretionary authority
to determine the admission or exclusion of a particular foreign
national. He promulgated an executive order affecting millions of
individuals on a categorical basis. Second, Mandel and Din did not
purport to establish the framework for adjudicating cases (like this one)
involving claims that the Executive Branch violated the Establishment
Clause by acting pursuant to an unconstitutional purpose. Applying
Mandel’s narrow standard of review to such a claim would run contrary
to this Court’s repeated admonition that “[f]acial neutrality is not
determinative” in the Establishment Clause context. Lukumi, 508
U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v.
Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case, addressed
a constitutional challenge to a statute enacted by Congress, not
an order of the President. Id., at 791. Fiallo’s application of Mandel
says little about whether Mandel’s narrow standard of review applies to
the unilateral executive proclamation promulgated under the circumstances
of this case. Finally, even assuming that Mandel and Din
apply here, they would not preclude us from looking behind the face of
the Proclamation because plaintiffs have made “an affirmative showing
of bad faith,” Din, 576 U. S., at ___ (slip op., at 5), by the President who,
among other things, instructed his subordinates to find a “lega[l]” way
to enact a Muslim ban, App. 125; see supra, at 4–10.

Cite as: 585 U. S. ____ (2018) 15
SOTOMAYOR, J., dissenting
to apply Mandel’s “narrow standard of review” and “assume[s]
that we may look behind the face of the Proclamation.”
Ante, at 31–32. In doing so, however, the Court,
without explanation or precedential support, limits its
review of the Proclamation to rational-basis scrutiny.
Ibid. That approach is perplexing, given that in other
Establishment Clause cases, including those involving
claims of religious animus or discrimination, this Court
has applied a more stringent standard of review. See, e.g.,
McCreary, 545 U. S., at 860–863; Larson, 456 U. S., at
246; Presbyterian Church in U. S. v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church, 393 U. S. 440, 449–
452 (1969); see also Colorado Christian Univ. v. Weaver,
534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting
that, under Supreme Court precedent, laws “involving
discrimination on the basis of religion, including interdenominational
discrimination, are subject to heightened
scrutiny whether they arise under the Free Exercise
Clause, the Establishment Clause, or the Equal Protection
Clause” (citations omitted)).6 As explained above, the
——————
6The majority chides as “problematic” the importation of Establishment
Clause jurisprudence “in the national security and foreign affairs
context.” Ante, at 32–33, n. 5. As the majority sees it, this Court’s
Establishment Clause precedents do not apply to cases involving
“immigration policies, diplomatic sanctions, and military actions.”
Ante, at 32, n. 5. But just because the Court has not confronted the
precise situation at hand does not render these cases (or the principles
they announced) inapplicable. Moreover, the majority’s complaint
regarding the lack of direct authority is a puzzling charge, given that
the majority itself fails to cite any “authority for its proposition” that a
more probing review is inappropriate in a case like this one, where
United States citizens allege that the Executive has violated the
Establishment Clause by issuing a sweeping executive order motivated
by animus. Ante, at 33 n. 5; see supra, at 14, and n. 5. In any event,
even if there is no prior case directly on point, it is clear from our
precedent that “[w]hatever power the United States Constitution
envisions for the Executive” in the context of national security and
foreign affairs, “it most assuredly envisions a role for all three branches

16 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
Proclamation is plainly unconstitutional under that
heightened standard. See supra, at 10–13.
But even under rational-basis review, the Proclamation
must fall. That is so because the Proclamation is “‘divorced
from any factual context from which we could
discern a relationship to legitimate state interests,’ and
‘its sheer breadth [is] so discontinuous with the reasons
offered for it’” that the policy is “‘inexplicable by anything
but animus.’” Ante, at 33 (quoting Romer v. Evans, 517
U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 448 (1985) (recognizing
that classifications predicated on discriminatory animus
can never be legitimate because the Government has no
legitimate interest in exploiting “mere negative attitudes,
or fear” toward a disfavored group). The President’s
statements, which the majority utterly fails to address in
its legal analysis, strongly support the conclusion that the
Proclamation was issued to express hostility toward Muslims
and exclude them from the country. Given the overwhelming
record evidence of anti-Muslim animus, it simply
cannot be said that the Proclamation has a legitimate
basis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring)
(explaining that the Proclamation contravenes the bedrock
principle “that the government may not act on the basis of
——————
when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S.
507, 536 (2004) (plurality opinion). This Court’s Establishment Clause
precedents require that, if a reasonable observer would understand an
executive action to be driven by discriminatory animus, the action be
invalidated. See McCreary, 545 U. S., at 860. That reasonableobserver
inquiry includes consideration of the Government’s asserted
justifications for its actions. The Government’s invocation of a nationalsecurity
justification, however, does not mean that the Court should
close its eyes to other relevant information. Deference is different from
unquestioning acceptance. Thus, what is “far more problematic” in this
case is the majority’s apparent willingness to throw the Establishment
Clause out the window and forgo any meaningful constitutional review
at the mere mention of a national-security concern. Ante, at 32, n. 5.
Cite as: 585 U. S. ____ (2018) 17
SOTOMAYOR, J., dissenting
animus toward a disfavored religious minority” (emphasis
in original)).
The majority insists that the Proclamation furthers two
interrelated national-security interests: “preventing entry
of nationals who cannot be adequately vetted and inducing
other nations to improve their practices.” Ante, at 34. But
the Court offers insufficient support for its view “that the
entry suspension has a legitimate grounding in [those]
national security concerns, quite apart from any religious
hostility.” Ibid.; see also ante, at 33–38, and n. 7. Indeed,
even a cursory review of the Government’s asserted
national-security rationale reveals that the Proclamation is
nothing more than a “‘religious gerrymander.’” Lukumi,
508 U. S., at 535.
The majority first emphasizes that the Proclamation
“says nothing about religion.” Ante, at 34. Even so, the
Proclamation, just like its predecessors, overwhelmingly
targets Muslim-majority nations. Given the record here,
including all the President’s statements linking the Proclamation
to his apparent hostility toward Muslims, it is of
no moment that the Proclamation also includes minor
restrictions on two non-Muslim majority countries, North
Korea and Venezuela, or that the Government has removed
a few Muslim-majority countries from the list of
covered countries since EO–1 was issued. Consideration
of the entire record supports the conclusion that the inclusion
of North Korea and Venezuela, and the removal of
other countries, simply reflect subtle efforts to start “talking
territory instead of Muslim,” App. 123, precisely so the
Executive Branch could evade criticism or legal consequences
for the Proclamation’s otherwise clear targeting of
Muslims. The Proclamation’s effect on North Korea and
Venezuela, for example, is insubstantial, if not entirely
symbolic. A prior sanctions order already restricts entry
of North Korean nationals, see Exec. Order No. 13810, 82
Fed. Reg. 44705 (2017), and the Proclamation targets only

18 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
a handful of Venezuelan government officials and their
immediate family members, 82 Fed. Reg. 45166. As such,
the President’s inclusion of North Korea and Venezuela
does little to mitigate the anti-Muslim animus that permeates
the Proclamation.
The majority next contends that the Proclamation “reflects
the results of a worldwide review process undertaken
by multiple Cabinet officials.” Ante, at 34. At the outset,
there is some evidence that at least one of the
individuals involved in that process may have exhibited
bias against Muslims. As noted by one group of amici, the
Trump administration appointed Frank Wuco to help
enforce the President’s travel bans and lead the multiagency
review process. See Brief for Plaintiffs in International
Refugee Assistance Project v. Trump as Amici Curiae
13–14, and n. 10. According to amici, Wuco has
purportedly made several suspect public statements about
Islam: He has “publicly declared that it was a ‘great idea’
to ‘stop the visa application process into this country from
Muslim nations in a blanket type of policy,’” “that Muslim
populations ‘living under other-than-Muslim rule’ will
‘necessarily’ turn to violence, that Islam prescribes ‘violence
and warfare against unbelievers,’ and that Muslims
‘by-and-large . . . resist assimilation.’” Id., at 14.
But, even setting aside those comments, the worldwide
review does little to break the clear connection between
the Proclamation and the President’s anti-Muslim statements.
For “[n]o matter how many officials affix their
names to it, the Proclamation rests on a rotten foundation.”
Brief for Constitutional Law Scholars as Amici
Curiae 7 (filed Apr. 2, 2018); see supra, at 4–10. The
President campaigned on a promise to implement a “total
and complete shutdown of Muslims” entering the country,
translated that campaign promise into a concrete policy,
and made several statements linking that policy (in its
various forms) to anti-Muslim animus.

Cite as: 585 U. S. ____ (2018) 19
SOTOMAYOR, J., dissenting
Ignoring all this, the majority empowers the President
to hide behind an administrative review process that the
Government refuses to disclose to the public. See IRAP II,
883 F. 3d, at 268 (“[T]he Government chose not to make
the review publicly available” even in redacted form);
IRAP v. Trump, No. 17–2231 (CA4), Doc. 126 (Letter from
S. Swingle, Counsel for Defendants-Ap