Sunday, April 22, 2018

“Not the Next Korematsu”

Richard Primus

Last spring, I published a short essay about the relationship between the entry-ban litigation and Korematsu v. United States.  I argued that the shadow of Korematsu—and, more particularly, the opportunity to repudiate Korematsu—could well be on the Justices’ minds as they confronted the entry ban.  Obviously, the current case differs from Korematsu in several ways, and it wouldn’t be legally necessary to repudiate Korematsu in order to strike down the entry ban.  But if a majority of the Court were inclined to strike down the entry ban, it’s not hard to imagine someone’s writing an opinion that includes the sentence “Korematsu was wrong the day it was decided.”

I still think that officially repudiating Korematsu is probably an attractive prospect for most of the Justices.  And that prospect aside, I’m confident that on the merits of the current case, the entry ban should be struck down as unconstitutional.  So if the Supreme Court does the right thing—a possibility that cannot be precluded—then we might well see overt discussion and repudiation of Korematsu. 

But the deepest lesson of Korematsu is one that ought to make us unsurprised if the Supreme Court upholds the entry ban orders. 

That lesson, of course, is this: the Supreme Court, as an institution, is perfectly capable of signing off on morally evil executive branch policies that are ostensibly (but not really) necessary for national security, even when the legal arguments for the executive branch are weak.  The Court, as it existed in the 1940s, decided Korematsu the way it did.  Three dissenters at the time, and pretty much the whole legal profession soon thereafter, regarded the decision as a terrible mistake.  But the Court did what it did. 

Given the low regard in which Korematsu is now held, we can be pretty confident that no foreseeable Supreme Court will uphold an exclusion order (or an internment order) aimed specifically at American citizens of Japanese descent.  But there is little reason to think that an institution that produced Korematsu under the conditions of the 1940s could not, mutatis mutandis, make some analogous moral and legal blunder in the 2010s.  We have a case where the executive branch acts for bigoted reasons, produces a national-security rationale, and demands deference from the judiciary in view of its supposedly superior decisionmaking competence.  If the order looked just like the Korematsu order, the Court probably wouldn’t go for it.  Everyone pretty much thinks that would be unconstitutional.  But it’s often easier to know that some executive-branch policy should have been held unconstitutional decades ago, when everyone you know today thinks that policy was unconstitutional, than it is to recognize what should be done on a new set of facts in the present.  And indeed, if the Court does uphold the entry ban, it could well point to Korematsu as justification—not by relying on it, but by distinguishing the case. 

Cases from the constitutional past that are widely regarded as bad mistakes—anti-canonical cases, as I described them twenty years ago—are sometimes used to create a false sense of security about decisions in the present.  Whatever unpleasant thing we might tolerate today, we say, is not the same as that bad thing that happened in the past.  De facto segregation is bad—but by pointing out that it isn’t the same as official Jim Crow segregation, we help assure ourselves that we’re doing it right.  Courts in the age of Jim Crow might have had a parallel thought: the contrast with slavery could make Jim Crow look tolerable, just as the contrast with Jim Crow helps make de facto segregation look tolerable today.  (Reva Siegel wrote well about all of this.)  To be clear, the fact that there exists some consensus evil in the past doesn’t prove that the current situation is merely one more evil that should be overcome: maybe de facto segregation is and should be tolerable, constitutionally speaking.  It’s not an easy question, at least not to people who confront it in 2018.  (What people will think when they look back from 2118 is something I’m not qualified to predict.)  The point I’m making here is simply that distinguishing a current case from some past evil shouldn’t be enough to establish that what’s happening now is constitutionally acceptable.  It might just be false comfort.

A few months ago, I accepted a Federalist Society invitation to debate the constitutionality of the entry ban with another law professor—a defender of the Trump Administration’s executive orders.  He offered about as good a legal defense of those orders as I have heard.  As part of framing his remarks, my interlocutor mentioned that the Supreme Court confronted the previous version of the entry ban last June and, though the Court did not endorse the President’s policies, it did not reject them, either.  (What the Court did last June was to allow the second version of the entry ban order to remain partly in place pending a full decision on the merits that everyone knew would never come, because Executive Order 13780 would become moot before any such decision was rendered.)  Last June’s ruling by the Supreme Court was of course considerably less condemnatory of the entry ban than most lower-court decisions on the entry-ban issue had been.  In the Fourth Circuit, for example, the ban had been diagnosed as the product of anti-Muslim bigotry and held unconstitutional accordingly.  According to my interlocutor that day, the Court’s refusing to do what the lower courts had done signaled that the lower courts’ view was likely overheated: the fact that the Court had confronted the entry ban and not felt the need to take decisive action striking down E.O. 13780 indicated that E.O. 13780 was not a flagrantly unconstitutional instantiation of governmental bigotry.  My colleague summed up the point by saying that the Court’s apparent tolerance for the entry ban should tell us that whatever the best view of the issue in the end, this case is not the next Korematsu.

I know what he meant.  But there’s an irony in the characterization, and an instructive one.  The logic of the idea is that if the entry ban were really the horribly bigoted thing that the Fourth Circuit thought it was, the Supreme Court would not have tolerated it, because the Supreme Court can be relied upon to have a sensible view of what is and isn’t horribly bigoted government conduct.  But to say that the Court’s tolerance for this executive order makes the entry-ban case different from Korematsu is to forget something fundamental about Korematsu.  It’s this: Korematsu was a case in which the Supreme Court of the United States upheld an order rooted in executive-branch racism.  What we should learn from Korematsu is precisely that the Court is capable of upholding grossly bigoted executive orders, executive orders so shameful that the name of the case upholding them quickly becomes a consensus byword for constitutional law at its ugliest.  So it makes little sense to say that the Court’s tolerance for an executive action should reassure us that that action is unlike the action at issue in Korematsu.  It makes at least as much sense to think that this case will be like Korematsu if the Court upholds the executive order.  After all, what the Court did in Korematsu was uphold a bigoted order that should have been held unconstitutional.    

I hope to read an opinion in this case that contains the sentence “Korematsu was wrong the day it was decided.”  But if the entry ban order is upheld, we should not be surprised to read an opinion in which the Supreme Court justifies its decision in part by noting that this case is not Korematsu.  Which of course it isn’t; history rarely repeats itself that cleanly.  But admirable decisionmaking requires more than condemning the precise thing that everyone has agreed to condemn for more than half a century.  And if the Court pronounces the entry ban constitutional, we should not make the mistake of thinking that that pronouncement means that the entry ban is any better in our day, morally or constitutionally, than the Japanese exclusion order was in the 1940s.  The Court upheld that one, too. 

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