The Supreme Court looks away

David Cole writes:

At the close of his opinion upholding President Donald Trump’s ban on immigrants from five predominantly Muslim countries, Chief Justice John Roberts proclaimed on Tuesday that “Korematsu has nothing to do with this case.” He went on to write that Korematsu v. United States, the 1944 decision that backed the internment of Japanese citizens and immigrants based on their race, “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.”

Strong words. But actions speak louder. Even as he acknowledged the court’s error in Korematsu, Roberts repeated it, virtually verbatim, in Trump v. Hawaii. Here, as in Korematsu, the president targeted a vast group of people based on prejudice. Here, as in Korematsu, the president defended his action by citing national security, but offered no evidence to support the assertion. And here, as in Korematsu, the court accepted those unsubstantiated national security concerns without question, applied only the most anemic judicial review, and rubber-stamped the president’s actions. Just as the court would in no other context accept such blatant racial discrimination as that imposed on Japanese Americans during World War II, so the court would in no other setting accept the rampant bias President Trump showed toward the Muslim faith in the travel ban. In both cases, the court deferred to the prejudice of the powerful and abdicated its duty to protect the rights of the vulnerable.

Indeed, as one commenter on Twitter noted, if Korematsu really had nothing to do with Trump v. Hawaii, the court could just as well have announced its overruling of the 1944 decision in its antitrust ruling the day before. But, of course, Korematsu had everything to do with the travel ban case. That’s why Roberts felt compelled to try, unpersuasively, to distinguish it. But if anything, the distinctions cut the other way, making the court’s blessing of the travel ban even less explicable. The internment—and the decision allowing it—was the product of a true wartime national emergency. Today, the permanent “war on terror” lingers on, but there is no threat to the US that is equivalent to those posed by Nazi Germany or Imperial Japan in the 1940s. [Continue reading…]

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