The return of the Fuller Court has led to the same ridiculous leaps of logic as that hellish time. The ways the majority made logical leaps and weaponized the First Amendment to serve its own interests, regardless of consistency between cases, is highly reminiscent of how the Fuller Court simply rewrote the Sherman Anti-Trust Act to bust unions and the Fourteenth Amendment to apply to corporations but not black people. That’s where we are, that’s where we will be for the foreseeable future, and it is very sad. But of course, the bad old days of the Fuller Court is not the only horrifying Building on Scott’s post from yesterday, I wanted to link to Paul Kramer’s analysis of the Muslim Ban case, which we might as well call Korematsu II, even as Roberts and company directly insulted the Korematsu family by overturning that decision to reflect new racism. Anyway:
Ironically, Roberts’ claim that discrimination had no legally salient role in the travel ban has precedent: Justice Hugo Black’s 1944 majority opinion in defense of Japanese removal, in Korematsu.
Like Roberts on the travel ban, Black contended Japanese removal hadn’t been about racism. Fred Korematsu, a Japanese-American man who had been arrested in San Leandro, California, in May 1942 for defying a relocation order, had not been compelled to leave the West Coast “because of hostility to him or his race.” The issue had been national security: the war with Japan, authorities’ fear of invasion, and a sense of “military urgency,” which “demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”
Black was unequivocal: Racism and national security were distinctly separate matters; removal of the Japanese had been strictly about protecting America during wartime. “To cast this case into outlines of racial prejudice,” he wrote, “without reference to the real military dangers that were presented, merely confuses the issue.”
Though Roberts and Black deny it in their respective cases, racial animus and national security have long been bound, with fateful effects for immigrants and their communities, and for U.S. immigration policy. In fact, the fusing of race and security was instrumental to the Supreme Court’s foundational 1889 decision to grant Congress exclusive, “plenary” control over immigration legislation. Chae Chan Ping, a Chinese man, had been working in San Francisco for 12 years when he decided to return home. He traveled with a U.S.-issued certificate entitling him to return to America, but while he was abroad, Congress passed the Scott Act, which invalidated these documents, and Ping was barred from re-entry.
He sued, and his case eventually made its way to the Supreme Court, which decided against him. In the process, it transformed the relationship between the judicial and legislative branches regarding immigration control. The court stated that immigration should be seen as closely related to military defense against external threats because of the racial undesirability of the migrants in question. “[T]the presence of foreigners of a different race in this country, who will not assimilate with us,” it said, “was dangerous to its peace and security.”
And there’s the Fuller Court again.
According to the court, a nation’s highest duty was to preserve its independence against foreign dangers; it did not matter “in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.” The existence of Chinese immigrants like Ping in the United States, in and of itself, represented a kind of persistent, undeclared war; their exclusion and deportation were legally analogous to the repelling of an invasion.
Since then, the United States has linked immigration with wars, whether real or imagined, and in the process has transformed “foreign” populations into geopolitical dangers. The rise of Japan as a military and colonial competitor in the Pacific in the early 20th century helped give rise to anti-Japanese violence and exclusion on the West Coast. During World War I, government agencies surveilled and detained German immigrants and promoted the suppression of German culture. The Cold War saw the arrest, exclusion, and deportation of immigrants possessing even the thinnest affiliations with communist movements. The “war on terror” brought the mass detention and surveillance of Muslims, Arabs, and South Asians on the grounds of shadowy associations between a person’s ethnic background, religion, regional origin, politics, and propensity for violence.
Basically, Trump v. Hawaii is just the latest in a long line of racist decisions the Court has enacted based on dubious national security grounds.
The Trump administration is nothing new in America, except for the foreign policy ridiculousness. It’s just the worst of America, past and present, all wrapped up in one nice fascist package.