Faculty Blog

Putting Korematsu to Rest, Not a Moment Too Soon

More than a few commentators have noted the U.S. Supreme Court’s effort in Trump v. Hawaii, the travel ban case, to put to rest any lingering doubt about the validity of one of the nation’s most notorious judicial precedents, Korematsu v. United States.

In that World War II-era case, the Court upheld the government-mandated internment of Japanese-American citizens. Though the Korematsu court purported to subject the internment order to the most intense judicial scrutiny, in reality it caved to governmental fearmongering and unsupported allegations that the citizens in question posed some kind of national security threat.

To say that Korematsu does not represent the Supreme Court’s finest moment is an understatement. But the circumstances of the case were unique, and the Court has had no occasion since to reconsider the ruling or its precedential value.

Until, that is, it agreed to decide the constitutionality of the Trump administration’s restrictions on entry into the United States by foreign nationals from predominantly Muslim nations. Challengers contended that, like the World War II internment order in Korematsu, the travel ban reflects a discriminatory policy judgment disguised as a national security measure. This is essentially what Justice Sonya Sotomayor argued in her dissenting opinion: “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security,” she wrote, “the Court redeploys the same dangerous logic underlying Korematsu.”

In response, Chief Justice Roberts, writing for the majority in Trump v. Hawaii, distinguished the government action in each case. In Korematsu, he reasoned, the Court allowed the government to forcibly relocate U.S. citizens exclusively on the basis of race. Here, by contrast, the government, citing valid national security concerns, seeks to deny foreign nationals “the privilege of admission.”

The distinctions between the cases are not frivolous. The court has a long history of deference to national security decision making, and the travel ban policy was, technically, neutral on its face. At a higher level, of course, it seems difficult to deny the evidence of discriminatory animus underlying the ban. But the majority kept its view at ground level, likely because it did not want to deal with the implications of applying a stricter standard of review to the policy determinations of this particular White House.

And, importantly, the Chief Justice did more than just distinguish Korematsu. That decision, he stated, “was gravely wrong the day it was decided, has been overruled in the court of history and [quoting Justice Robert Jackson, one of the Korematsu dissenters]—to be clear—‘has no place in law under the Constitution.’”

Despite the Court’s reluctance to credit the animus underlying the travel ban, its statement about Korematsu is not hollow. To the contrary, it was not so long ago that associates of President Trump were seriously suggesting that the federal government could rely upon Korematsu to justify tracking and detaining Muslim-Americans and Muslim immigrants. The Court in Trump v. Hawaii put an end to that line of thinking, setting at least one definitive limit on this administration’s ability to act on its worst impulses.

Lawrence Friedman teaches courses in constitutional law, privacy law and national security law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s