A New Korematsu

The travel ban ruling will be the Roberts court’s shameful legacy.

John Roberts.
Supreme Court Chief Justice John Roberts at the State of the Union on Jan. 30. Win McNamee/Getty Images

When the Supreme Court upheld Donald Trump’s travel ban on Tuesday by a 5–4 vote, Justice Sonia Sotomayor, in a dissent joined by Ruth Bader Ginsburg, compared the majority opinion to Korematsu, the Supreme Court case that infamously upheld the Japanese internment. Chief Justice John Roberts, the author of the majority opinion in Trump v. Hawaii, complained that the comparison was unfair. In one respect, Roberts is correct: The Korematsu court at least didn’t have any warning it was being misled by the Department of Justice. Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch explicitly dismissed the well-documented warnings that the travel ban and its waiver program may be a fraud.

The lawyers, most notably Solicitor General Charles Fahy, who hid evidence and misled the Korematsu court in 1944 are forever tainted by their immoral and grossly unprofessional misconduct. These five justices, along with Solicitor General Noel Francisco, face the same shameful legacy.

Let’s briefly review Francisco’s conduct. As Joshua Geltzer documented in Slate, Francisco misstated the core facts about Trump’s statements of animus toward Muslims in oral arguments and generally was misleading about Trump’s animus. Strike 1. Francisco filed an insufficient three-sentence letter of correction that addressed only one factual error and did not address the larger problem of mischaracterizing Trump’s animus. Strike 2.

The justices had asked in oral arguments whether the travel ban’s waiver program—the existence of which the DOJ relied on to argue that the ban was a fair and standard presidential directive—was merely “window dressing.” Statistics and individual cases of denials had already suggested that the waiver process may be a sham. As Jeremy Stahl has reported, a former consular officer said in a sworn affidavit that he had no discretion to actually grant waivers. Another consular officer said “the waiver process is fraud” and has “no rational basis.” It’s fair to ask whether Francisco misrepresented the waiver process. Strike 3.

Roberts, in writing for the majority, parroted the Trump administration in vouching for the sanctity of the waiver process, which he says:

provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. … On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis.

On its face. This is precisely the “window dressing” problem, as Justices Stephen Breyer and Sotomayor had noted in oral argument. It seems to be a facial façade, if you’ll pardon the redundancy.

Breyer and Sotomayor do not pull punches on this point in their dissents. Here’s Breyer, in a dissent joined by Justice Elena Kagan:

In a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit asserting that he and other officials do not, in fact, have discretion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’ ” Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “ ‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty that … would likely lead to the child’s developmental harm or death.’ ” …

Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that answers to the “exemption and waiver” questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand.

And here’s Sotomayor’s dissent, joined by Ginsburg:

Equally unavailing is the majority’s reliance on the Proclamation’s waiver program. … As several amici thoroughly explain, there is reason to suspect that the Proclamation’s waiver program is nothing more than a sham. See Brief for Pars Equality Center et al. as Amici Curiae 11, 13–28 (explaining that “waivers under the Proclamation are vanishingly rare” and reporting numerous stories of deserving applicants denied waivers). The remote possibility of obtaining a waiver pursuant to an ad hoc, discretionary, and seemingly arbitrary process scarcely demonstrates that the Proclamation is rooted in a genuine concern for national security. See ante, at 3–8 (BREYER, J., dissenting) (outlining evidence suggesting “that the Government is not applying the Proclamation as written,” that “waivers are not being processed in an ordinary way,” and that consular and other officials “do not, in fact, have discretion to grant waivers”).

What’s Roberts’ response to these alarming facts and these warnings about a fraud being perpetrated on his court? A short, dismissive footnote:

Justice Breyer focuses on only one aspect of our consideration—the waiver program and other exemptions in the Proclamation. Citing selective statistics, anecdotal evidence, and a declaration from unrelated litigation, Justice Breyer suggests that not enough individuals are receiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet even if such an inquiry were appropriate under rational basis review, the evidence he cites provides “but a piece of the picture” … and does not affect our analysis.

Does not affect our analysis. There are some footnotes in Supreme Court cases that live on famously, like Carolene Products Footnote 4, which, in the shadow of Jim Crow and the rise of Nazism, outlined an approach to equal protection and civil liberties that would eventually lead to Brown v. Board of Education and a generation of civil rights cases. I suspect that Roberts’ travel ban Footnote 7 might live on infamously and come to define his court.

Elsewhere in his opinion, Roberts bristles at the comparison to Korematsu, and understandably so. The truth hurts. In defending Japanese internment in the 1940s, the DOJ misled the court. Historian Peter Irons discovered this evidence in the 1980s, too late for the imprisoned plaintiffs, but not too late to make Charles Fahy notorious for his lies. As Irons wrote this month, the solicitor general “knowingly misled the justices about the dangers of espionage and sabotage purportedly posed by members of this racial minority.” Fahy’s assistant, Edward Ennis, found a Navy report stating, “the entire ‘Japanese Problem’ has been magnified out of its true proportion (and) should be handled on the basis of the individual, and not on a racial basis.” Ennis warned Fahy that failing to disclose this report might constitute suppression of evidence, but Fahy still hid it as he argued that the internment orders were a matter of “military necessity.” On appeal, Fahy hid other compelling evidence from the courts, assuring the court that “not a single line, a single word, or a single syllable” in key reports undercut the military necessity of the internment. These were lies.

Thanks to the power of Irons’ research, federal judges overturned Korematsu’s conviction in 1983. As the historian wrote this month:

In vacating Korematsu’s conviction, U.S. District Judge Marilyn Hall Patel—in a posthumous rebuke to Fahy—wrote that “(t)he judicial process is seriously impaired when the government’s law enforcement officers violate their ethical obligations to the court.” In a sadly prophetic tone, she warned that the original Supreme Court opinion [in Korematsu] “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”

Has Solicitor General Francisco misled the Supreme Court and violated ethical obligations? It’s too soon to know, but an investigation is necessary. The solicitor general is not just any lawyer representing a client. The position has been called the 10th justice, reflecting the office’s historical role of aiding the court with a commitment to getting the law right. There are serious questions about whether Francisco has fulfilled that promise as solicitor general.

And what about the fate and integrity of the Roberts court? Several of the justices who upheld the Japanese internment later redeemed themselves by striking down school segregation in Brown and pioneering an era of civil rights expansion. Roberts, along with four other justices, has been working to undo their work for most of his judicial career.
His majority opinion upholding the travel ban is consistent with his anti–civil rights career. And if Kennedy retires this week, his mixed legacy on civil liberties will end on a shameful note, denying voting rights and ignoring evidence of bad-faith religious discrimination. The majority seemed genuinely concerned with anti-religious bias in Masterpiece Cakeshop, but the decision in Trump v. Hawaii suggests the Roberts court is concerned only with anti-Christian bias (see Hobby Lobby) as opposed to religious liberty generally. Finally, it is troubling that the majority ignored evidence of fraud and animus against Muslims at the border while the administration is in the midst of implementing a fraudulent and animus-driven border policy of family separation.

Maybe these five justices will have a chance to redeem themselves if this case comes back after remand, and maybe they will find other ways to stand up for equality, civil liberties, and the rule of law as the Korematsu majority did later. But this week’s injustice obviously is not a good sign.