Like a loaded weapon

Unsurprisingly, the Trump administration is citing the Court’s disastrous opinion in Trump v. Hawaii to justify further human rights abuses:

Normally, the way reactionary judges hand-wave discriminatory intent is to demand ironclad proof of motive, which essentially means that state officials can freely violate the 5th and 14th Amendments as long as they don’t admit what they’re doing in open court. In Korematsu II, however, the administration openly and explicitly stated its discriminatory intent — and the Court just ignored it anyway.

We just recorded a podcast with Leah Litman about her new book. One of the major themes of Lawless is that reactionary jurisprudence isn’t based on any kind of Grand Theory, but by vibes based on a collection of grievances and resentments. “Being accused of discrimination is much worse than engaging in discrimination” is at the top of the list. And this leads us to the place where the administration can say in a legal brief that the president’s repeated confirmation that immigrants are being sent to slave prisons without due process for a punitive purpose should be ignored, and the brief can credibly cite recent Supreme Court precedent to support it.