In a ruling this week, the Supreme Court decided that a jury’s deliberations should not be kept secret, nor should its verdict be considered final, if even one juror shows any intent of bigotry toward a defendant. The decision breaks a long legal tradition of deference to juries and the protection of their discussions. But the justices decided that no arm of government should be immune from strict scrutiny about its intent to discriminate based on race, religion, national origin, or ethnicity.
“It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons,” wrote Justice Anthony Kennedy for the majority.
The ruling could provide a foretaste of what the federal courts might decide about President Trump’s second attempt at a temporary ban on new visas for nationals from Syria, Iran, Libya, Somalia, Yemen, and Sudan. His executive order, which was issued on Monday, will face many court challenges when it takes effect March 16.
The administration claims the order has a single purpose: protecting Americans from people coming from countries it says are sponsors of terrorism or fail to prevent terrorist groups from operating on their territory. Yet the courts may look hard at Mr. Trump’s intent, especially his campaign promise to ban Muslims from entering the United States.
Will judges defer to the president’s authority over national security and immigration? Or will they look hard at Trump’s pre-presidential rhetoric and decide he really means to single out a religious group, Muslims, for discrimination?
In recent decades, the high court has had a mixed record on how deeply it scrutinizes the intent of an institution or a person for bias in order to protect a person’s basic rights, such as equal protection before the law. It has been deferential toward public universities about their use of racial preferences in admissions. But it has also closely examined the motives of a city in its hiring practices.
“Context matters,” the court has stated about how it looks at discrimination cases. Trump’s so-called travel ban targets only countries that are majority Muslim. And the order is widely perceived as a dangerous affront to Islam, one that could help terrorist groups in their recruiting. If the high court were to consider merely the religious nature of these countries and the potential effect of this order on national security, it would overturn it.
But the justices have a difficult task to determine Trump’s intent. Does the order, as Justice Kennedy might state, deny equal dignity of all persons, including Muslims?
The court was bold in prying open juries for tough scrutiny. No doubt it will do the same with the president.
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