Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Amid the general horror show today at the Supreme Court (sequel tomorrow), one small point that could easily get lost, but should not, is the majority’s effort in the travel ban case to distinguish Korematsu.
Today the majority took the interesting and, I think, important step of officially repudiating Korematsu. The Court held that that case was “gravely wrong the day it was decided” and furthermore “overruled in the court of history” (p.38) (a court whose jurisdiction it is at least interesting to hear the current five-Justice majority acknowledge). 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.
Second, the Court could have thought, and indeed sort of suggests on p.38, that the key is the difference between denying people “the privilege of admission,” on the one hand, and rounding up people already inside the U.S. and placing them in camps for long periods, on the other. That’s a real difference between those two policies. It is why Japanese internment was considerably worse than the travel ban in moral terms. But in legal terms, it’s hard to see why this inside/outside distinction does the work it would need to do in making a racist violation of the Equal Protection Clause into something perfectly constitutional. Moreover, recent experience suggests that the line between merely denying a “privilege of admission” and holding people in camps for long periods is not really so bright. The current administration has recently proposed doing the latter as a means to achieve the former: holding families in camps for indefinite periods in an effort to deny them the “privilege of admission.” Indeed it is building camps to hold such detainees, and in Arkansas, one proposed site for a camp for child detainees is so closeto the site of a former WWII Japanese internment camp that it is already drawing fire as an inappropriate site choice, inappropriate basically because it makes the comparison too uncomfortably obvious. The whole point of Japanese internment was that the government viewed Japanese people as dangerous foreigners and wished to exclude them from American society. The point of the President’s first-draft “Muslim ban” was the same. 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.
It is impossible to see the wrongness of most of the racial wrongs in our history if we have to pretend that the only real harm is when the government classifies people by race. Still, today, after many decades, Korematsu formally and unanimously entered the anticanon. That could be important. Let’s not lose sight of why it’s there.