Update, December 5 at 6:26 am:

The Guardian newspaper quotes the Center for Constitutional Rights as issuing the following statement about the Supreme Court's December 4 decision to allow the full latest version of Trump's Muslim ban executive order to take effect pending that Court's final decision on the merits of the ban, while completely ignoring the president's retweets of anti-Muslim hate videos by a right wing UK extremist to Trump's 43 million Twitter followers; even though disseminating the videos showed beyond any possible dispute what Trump's real reason for the ban orders has been right from the start:

"We will not allow this to become the new normal...Whatever the courts say, the Muslim ban is inhumane and discriminatory. We must continue to demonstrate that we reject and will continue to resist the politics of fear, anti-Muslim racism, and white supremacy."


My original comment follows:

In my two recent comments in reaction to Trump's horrifying retweets of anti-Muslim hate videos originally posted by a woman with a record of right wing extremism and Islamophobia in the UK, I contended (on November 29) that Donald Trump had demolished whatever claims to good faith national security reasons he might ever have had in issuing the various versions of his Muslim entry ban orders.


I also argued that, in the light of these vicious presidential tweets, which brought back disturbing memories of the subsequently executed Nazi war criminal Julius Streicher's attempts to label all Jews as dangerous criminals in his infamous Der Stuermer publication, the Supreme Court should immediate reopen the Muslim ban litigation and strike down every word of the latest version of Trump's executive order on this topic from beginning to end.

In a follow-up ilw.com comment, posted on November 30, i also presented extracts from the ACLU's comment on the same issue. This comment also argued that Trump had irretrievably undermined his legal argument to the effect that the various Muslim ban executive orders were allegedly justified by genuine national security considerations by retweeting the hate videos to his 43 million Twitter followers.


However, on December 4, the Supreme Court did the exact opposite of what I had urged and what the ACLU had also indicated was the correct legal approach. Instead, in a 7-2 decision, with only Justices Ginsburg and Sotomayor dissenting, the High Court upheld the latest version of the Muslim ban, without any exceptions or limitations, for the duration of the federal court litigation on the ban.

This will, by the terms of the decision, last until the Supreme Court itself issues a final disposition, either by refusing to grant certiorari after the 4th and 9th Circuit Courts render their final decisions (which of course is extremely unlikely), or by granting certiorari from one or both of these anticipated decisons and issuing a final judgment (almost inevitable).

While, ostensibly, this latest Supreme Court decision is not on the merits, and is only pendente lite, legal experts were quick to point out that the Court was very likely tipping its hand about how it is likely to rule on the merits of the entry ban executive order. For links to the two identical orders, each one relating to a different lower court case, see Scotus Blog at:


For CNN's news story on the Supreme Court decision in the light of Trump's retweet of the UK ultra-nationalist anti-Muslim hate videos, see:


In these two brief unsigned one-page decisions, without any written explanations, either for the majority decision or the dissent by Justices Ginsburg and Sotomayor, the Supreme Court has, very arguably, struck a blow against the integrity and independence of the entire federal court system. It did so by appearing to take at face value a purported "national security" justification for the latest Muslim ban order which Trump, in his latest tweets of the despicably vile videos indended to label all Muslims as violent criminals, has now himself demolished as a total sham, if not an attempted fraud upon the court.

But the Supeme Court has done more that merely making a decision potentially affecting the human rights of millions of people in the six affected Muslim countries (since adding two non-Muslim countries to the latest version of the ban order was never anything more than cynical window dressing that no one took seriously), and the constitutional rights of 2 or 3 million Muslim American citizens to have their religion treated on an equal basis with all others and not made into an object of scorn and contempt.

This latest decision also goes a long way to sanction banning entire populations from entering the United States purely based on their citizenship or national origin, in a throwback to the openly bigoted 1924 immigration act which banned almost all Jews, Catholics, Asians, Middle Easterners and Africans, as well as Southern and Eastern Europeans, from immigrating to the United States on racial and religious grounds, using national origins as a transparent excuse.

In the December 4 decision, therefore, in addition to striking a blow against the equal rights and status in our society of American Muslim citizens, and bolstering the claims of a president with pronounced authoritarian tendencies to dictatorial (or imperial) control over the entry by non-citizens to the United States, the Supreme Court has now taken a major step to resurrecting the practice of legitimizing bigotry on the basis of national origin, in a throwback to the discredited ideology of racial and religious prejudices of a century and more ago.

2,000 years ago, a young 1st century A.D. Roman poet, Marcus Annaeus Lucanus (Lucan), writing about the murderous civil wars of the previous century in his epic poem De Bello Civile (before he himself was murdered by Nero, one of the worst tyrants the world has ever known), penned the immortal words: iusque datum sceleri canimus ("I sing of legality bestowed on infamy.") Nothing could better describe the attempts to legitimize the obvious bigotry which, as Donald Trump has made clear again and again, in every possible way, forms the basis of his Muslim entry ban orders, including the one which the Supreme Court has just upheld.

Roger Algase
Attorney at Law