Taken together, the policies resemble a racial sorting system cloaked in legal process.
Sotomayor’s dissent in the asylum case gives the companion image. If Kagan’s dissent is about the plane, Sotomayor’s is about the door.
Sotomayor wrote that the Court “blesses the Executive Branch’s decision to slam the door shut on all who are fleeing persecution.” The rule is brutally simple: keep asylum seekers from stepping onto U.S. soil, even at a port of entry, and the government can say it has no duty to inspect them or accept their asylum applications. Under the majority’s logic, she wrote, “So long as the noncitizens are kept one inch away from U.S. soil,” the legal promise never attaches.¹⁰
Then came the line that should follow this Court for years: “More people will die.” More will try to cross illegally. More will be forced into dangerous conditions. More will be turned back toward violence because of race, religion, nationality, political opinion, or some other trait they cannot or should not have to change.¹¹
That is how a promise dies in law. Not always with a repeal. Sometimes with a distinction. Sometimes with a procedural rule. Sometimes with a theory that says the government owes nothing to the person standing just outside the line, and owes no accounting to the people it strips of protection after years of racist vilification.
The words on the Statue of Liberty have not moved. The plaque is still there. The torch is still raised. The golden door is still part of the poem.
But yesterday, the Court helped close it.
Kagan and Sotomayor left a record for history. Kagan wrote down the racism the majority would not face. Sotomayor wrote down the deaths the majority would not own. Between them, they described the new American welcome with terrible clarity: some may be preferred, some may be processed, some may be deported, and some may be kept one inch away from mercy.
The old poem did not ask whether the “tempest-tost” were convenient, rich, favored, or white. It imagined a country large enough to receive the poor, the homeless, the despised, and the desperate.
The new rule does not rewrite those lines aloud. It does something colder. It narrows them in practice. It turns the golden door into a legal threshold that can be kept just out of reach. It turns refuge into preference. It turns people who have lived and worked here for years into passengers for the next plane.
The lamp is still raised.
The door is not what the poem promised.
Bibliography
1. National Park Service, “The New Colossus,” Statue of Liberty National Monument. The NPS identifies the poem and the 1903 bronze plaque in the pedestal of the Statue of Liberty.
2. Mullin v. Doe, Supreme Court of the United States, Kagan, J., dissenting. Kagan’s dissent lists Trump’s statements about Haitians, Haiti, Somalia, Norway, and Sweden, and includes the lines “Haitians are Black,” “Norwegians and Swedes not so much,” and the discussion of whether the statements were “overtly racial.”
3. Associated Press and Reuters on Trump’s Somali comments; Commission on Presidential Debates transcript for Trump’s 2016 Syrian refugee “ISIS-aligned” and “great Trojan horse” comments.
4. Southern Poverty Law Center Hatewatch and The Guardian on Stephen Miller’s leaked Breitbart emails, including VDARE, “TPS is everything,” “The Camp of the Saints,” “immigration to replace existing demographics,” and “White youth population disappearing.”
5. Mullin v. Doe, Supreme Court of the United States, majority opinion and syllabus. The Court held that the TPS statute bars judicial review of nonconstitutional claims and that the Haiti equal-protection claim was unlikely to succeed.
6. Mullin v. Al Otro Lado, Supreme Court of the United States, majority opinion. The Court held that a person “arrives in the United States” only when he enters it.
7. Mullin v. Doe, Kagan, J., dissenting. Kagan wrote that the evidence was “plain to see,” that the majority and Trump’s lawyers could not “bear to repeat” the statements, and that the plaintiffs could instead be “put on the next plane.”