This week, the Roberts court, which has repeatedly flirted with the wrong side of history, finds itself firmly entrenched in it. The Supreme Court’s decision in Trump v. Hawaii to uphold the Trump administration’s Muslim ban in the face of the president’s virulent, direct, and repeated statements of anti-Muslim animus will stand alongside decisions like Plessy v. Ferguson, Dred Scott v. Sandford, and Korematsu v. United States as an enduring shame.
The Muslim ban was the first major piece of policy Trump enacted, and since its inception, lawyers and activists have compared it to the internment of Japanese Americans during World War II. Both target a minority group under the guise of national security. Both use some protected characteristic as a proxy for danger. And now, both have been found by the Supreme Courts of their times to be legal and proper exercises of the president’s power.
In a thin attempt to sidestep the inevitable comparisons to Korematsu, Chief Justice John Roberts, who delivered the court’s 5–4 opinion in Trump v. Hawaii, writes, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear has no place in law under the Constitution.”
Yet, the language the court used this week to nominally overrule Korematsu would have been insufficient to protect Japanese Americans from internment in 1942 and provides future protection that’s so confined as to be nonexistent. The Supreme Court could have overruled Korematsu as part of a commitment to broader principles of justice and anti-discrimination, or by finding that it’s unlawful to target individuals on the basis of race. Instead, the court has done nothing to prevent the possible replication of Korematsu. To the contrary, it has shown just how far it will go to protect the president when he decides to discriminate against individuals on the basis of race or religion.
To overrule Korematsu, the majority states, “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” The majority’s “overruling” is thus narrow in three separate ways: first on the kind of act forbidden, second on the groups protected, and third on how race must be used to be unlawful.
In the first piece, the court limits its overturn of Korematsu to “forcible relocation” to “concentration camps.” Such a ruling dramatically cordons the applicable fact pattern to the farthest end of the politically possible. Such narrow language moreover opens space for government sophistry—arguments that the relocation is not forcible or that places of relocation are not “concentration camps.” In normal circumstances, one would hope that the government would not attempt to push such transparently specious positions and that the court would act as a check if the government did so. Hawaii v. Trump, however, demonstrates both the executive branch’s brazen willingness to lie to protect its policies and the court’s vulnerability to the executive branch’s convenient and obvious obfuscation.
From there, the court further limits the finding to apply only to U.S. citizens—meaning that anyone else in the United States, from green card holders to visitors, will not be covered. While Korematsu focused on the internment of American citizens of Japanese ancestry, thousands of interned Japanese Americans were noncitizen residents. The court’s overruling this week would not have protected those individuals from internment, nor would it apply to any forcible relocation of the millions of green card holders who have lived in the United States for years. The court also offers no protection to the Central-American migrants and their children who are currently being held in concentration camps at the border.
At this point, the court has left us with the proposition that U.S. citizens cannot be forcibly placed into concentration camps. However, Roberts’ last two adjectival modifiers circumscribe this to the point of evaporation. The majority opinion states that the removal of U.S. citizens to concentration camps must be “solely and explicitly” on the basis of race to be unlawful. Implicit in this is the notion that if a facially plausible reason is proffered alongside race, then interning American citizens is constitutional. Moreover, for the internment to be unlawful the government must explicitly articulate that it is being done on a racial basis. And in Trump v. Hawaii, the court has shown it will turn a blind eye where it can. We now know that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering this country” is not explicit enough for the court to find animus. We also know that the court will lend legitimacy to the thinnest of ex post facto pretexts, especially when those pretexts fall in the realm of national security.
Based on this week’s majority opinion in the travel ban case, it is clear that the Roberts court would’ve concluded that the internment of Japanese Americans during World War II was lawful and justifiable. The Korematsu court unequivocally determined that the internment of Japanese citizens did not implicate “racial prejudice” (and that if it had, it would have been a “simple” case). The Korematsu court also deemed it “unjustifiable” to call internment camps “concentration camps,” noting “all the ugly connotations the term implies.” Instead, the Korematsu court found it was dealing with “nothing but an exclusion order” that was amply supported by “real military dangers.” Glibly and in spite of overwhelming evidence to the contrary, the court found that “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire.”
The Supreme Court twisting truth and reason to find that concentration camps are not concentration camps, and that Muslim bans are not Muslim bans, is the bones of its past and the muscle of its present. By overruling Korematsu so narrowly, the Supreme Court provides only superficial protection that’s vulnerable to arguments of the kind that succeeded in Korematsu in 1942 and succeeded in 2018 in Hawaii v. Trump. This week, the Supreme Court overruled the fantasy of Korematsu but did not reckon with its reality. In ignoring the reality of Korematsu, the court failed to recognize the metamorphosis of racial animus over time. Less charitably, the majority gave itself an undeserved self-laudatory pat on the back in the face of a devastating moral loss. At bottom, the toothless overruling of Korematsu cannot conceal the enduring shame of the Roberts court’s decision to give the Trump administration’s devastating policies its imprimatur of approval.
One more thing
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