The Supreme Court’s Greatest Misses 4: Korematsu on Korematsu II

“Congratulations, Mr. President. Do all the racism you’d like, we’ll have your back.”

Good piece by Karen Korematsu on the case that will be remembered as one of the worst of the many terrible things the Roberts Court has done:

When President Trump used questionable evidence to issue executive orders last year banning immigration from predominantly Muslim countries, I heard the same kind of stereotypes that targeted the Japanese-Americans in World War II being used against Muslims. So I, along with the children of Mr. Hirabayashi and Mr. Yasui, asked the Supreme Court to reject President Trump’s orders. We pointed to our fathers’ cases as an urgent warning against executive power run amok.

And we implored the court to repudiate its decisions in those cases while affirming their greater legacy: Blind deference to the executive branch, even in areas in which the president must wield wide discretion, is incompatible with the protection of fundamental freedoms. Meaningful judicial review is an essential element of a healthy democracy.

On Tuesday, the Supreme Court got it partly right. After nearly 75 years, the court officially overruled Korematsu v. United States. In the majority decision, Chief Justice John G. Roberts Jr., citing language used in a dissent to the 1944 ruling, wrote that the court was taking “the opportunity to make express what is already obvious: 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.’”

But the court’s repudiation of the Korematsu decision tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to that infamous decision. In fact, the Supreme Court indicated that the reason it addressed Korematsu was because the dissenting justices noted the “stark parallels between the reasoning of” the two cases.

Sotomayor’s dissent will — as with Harlan’s in Plessy, Holmes’s in Lochner and Gitlow, Brandeis’s in Olmstead, and Murphy’s and Jackson’s in Korematsu — be much more influential and widely quoted than Roberts’s opinion for the Court, which will quickly slide into the anticanon. Sotomayor is correct that the plenary powers doctrine is an anomaly, and it was eminently appropriate to use an extreme set of facts to further chip away at it, as another stage in what should be the liberal goal of overruling it entirely.

I’ve linked to it before, but Joseph Fishkin is especially good on why Roberts’s nominal overruling of Korematsu in its sequel was so defensive: Sotomayor has him dead to rights. The similarities were so striking that Roberts was boxed in and had no adequate response:

Chief Justice Roberts, writing for the majority, also opines that Korematsu has “nothing to do with” the travel ban case before them. That is putting it awfully strongly. Why exactly are the two cases so different? It seems to me that there are four ways the Court might try to distinguish Korematsu from today’s decision:

First, the Court could perhaps have thought that FDR, in Korematsu, relied on one set of presidential powers (war powers) while the travel ban relied on an entirely different set of presidential powers (the notorious plenary power over immigration). But this is obviously thin. Both of these are national-security-related presidential powers that generate various deferential doctrines from courts; the words differ, but the core idea is basically the same. In layperson’s terms, it’s not obvious why a president using presidential power to enact a series of “bans” in the midst of a phantom crisis of Muslim immigration should get more deference than a president who was actually in the thick of the largest and deadliest war in the nation’s history when he made the decision to intern Japanese-Americans. The majority wisely avoids this method of distinguishing Korematsu.

It’s worth stopping here and emphasizing this, because it’s pretty much the whole ballgame. The idea that Trump is owed greater deference than FDR was while WWII was ongoing is absurd, and Roberts doesn’t even try — but once the point has been implicitly conceded Roberts has nowhere to go that except the same willful blindness and bad faith the Court demonstrated in Korematsu.

Although internment is different and worse than exclusion, this distinction can’t do the doctrinal work it would need to do to prove that Korematsu categorically has “nothing to do with” the travel ban case.

Third, I suppose one could argue it’s one thing to act in a racially motivated way toward non-citizen immigrants, but different and much worse to do it to citizens. This doesn’t get us very far, however. Imagine that the Japanese internment program had applied exclusively to non-citizens—suppose it were framed as a change in immigration status, revoking permission to be in the country and therefore assigning such immigrants to internment/detention camps. Would that turn a “morally repugnant” action, the upholding of which “has no place in law under the Constitution,” into something perfectly constitutional? Nobody would argue this. It is just not plausible to imagine that the only problem with Japanese internment was when the policy was applied to the small number of Japanese-Americans who our law allowed to become citizens (basically, children born in the U.S.—others were barred from naturalizing). This cannot be the reason why Korematsu has “nothing to do with” the travel ban case.

So we are left with the fourth option, which the Court seems to embrace on p.38. It’s a distinction that has proved among the most malleable in the Court’s arsenal: the modern distinction between racial classifications and facial neutrality. From this perspective, it is really important that the travel ban is a “facially neutral policy,” whereas Korematsu was a racial classification, an act “solely and explicitly on the basis of race.” (p.38).

The problem with drawing the line that way should be familiar to any student of constitutional law. To see the absurdity in relation to Korematsu, imagine that the WWII-era policy was simply to hold in internment camps anyone who came to the United States from a specified country (with whom we were at war): Japan. That is, a white person who came from Japan is going to be interned too, just as much as an Asian person—we’re going by what country you’re from, a facially neutral (that is, not-racial-on-its-face) policy to treat people from one country, with whom we were at war, differently from people from other countries. To be sure, in real life nobody would have thought of phrasing the policy that way because the modern niceties of anticlassificationist ideology were not yet part of American conservative constitutional politics, and certainly had not been incorporated into constitutional law. But suppose the government, with great foresight, managed to frame its action that way. Suppose Korematsu then came out as it did in real life. Would that decision be less worthy of repudiation today? Would this alone be enough to move it from the anticanon to the canon?

The idea is absurd. The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicities. The problem was the underlying xenophobia of the policy itself, and of the proposition that everyone from Japan, and their children, presented a military threat to the United States. Framing the policy in facially netural terms would not have changed this; nor, similarly, would the Japanese internment policy be less worthy of repudiation today if the government had belatedly added Germany and Italy to the list of nations from which people would be interned, in the same way that the Trump Administration belatedly added Venezuela and North Korea (and set up a “waiver” process that is apparently something of a sham) as a way of dressing up the policy as something other than what it is in a bid to survive judicial scrutiny.

Today a narrow Republican majority on the Court accepted that bid, to their lasting shame (and ours). 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,” (Sotomayor dissent, p.28), the Court has managed to muddy even the question it attempted to clarify in passing today: why exactly Korematsu was wrong.

Then there’s Anthony Trump Kennedy’s inadvertently legacy-defining concurrence, but it symbolizes the relationship between elite Republicans and Trump so perfectly I’ll leave that to its own post. Roberts’s judgment in Korematsu II cannot be squared with his would-be face-saving overruling of the original. The decision resulted from some combination of Roberts’s belief that the policies being advanced by his party’s president are desirable, and that the extreme and anomalous deference that enables his racist authoritarianism is desirable. Wrong, and wrong again.