WASHINGTON — In the annals of Supreme Court history, a 1944 decision upholding the forcible internment of Japanese-Americans during World War II has long stood out as a stain that is almost universally recognized as a shameful mistake. Yet that notorious precedent, Korematsu v. United States, remained law because no case gave justices a good opportunity to overrule it.
But Tuesday, when the Supreme Court’s conservative majority upheld President Donald Trump’s ban on travel into the United States by citizens of several predominantly Muslim countries, Chief Justice John Roberts also seized the moment to finally overrule Korematsu.
“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,” he wrote. Citing language used by then-Justice Robert Jackson in a dissent to the 1944 ruling, Roberts added: “Korematsu 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.'”
In a dissent of the travel ban ruling, Justice Sonia Sotomayor offered tepid applause. While the “formal repudiation of a shameful precedent is laudable and long overdue,” she said, it failed to make the court’s decision to uphold the travel ban acceptable or right. She accused the Justice Department and the court’s majority of adopting troubling parallels between the two cases.
In both cases, she wrote, the court deferred to the government’s invocation of “an ill-defined national security threat to justify an exclusionary policy of sweeping proportion,” relying on stereotypes about a particular group amid “strong evidence that impermissible hostility and animus motivated the government’s policy.”
The fallacies in Korematsu were echoed in the travel ban ruling, warned Hiroshi Motomura, a University of California, Los Angeles, law professor who has written extensively about immigration. “Overruling Korematsu the way the court did in this case reduces the overruling to symbolism that is so bare that it is deeply troubling, given the parts of the reasoning behind Korematsu that live on in today’s decision: a willingness to paint with a broad brush by nationality, race or religion by claiming national security grounds,” he said.
He added: “if the majority really wanted to bury Korematsu, they would have struck down the travel ban.”
The Korematsu ruling, an exceedingly rare modern example in which the court explicitly upheld government discrimination against an entire category of people based upon a trait like race or ethnicity, traced back to the early days after Japan attacked Pearl Harbor and the United States entered World War II.
In 1942, President Franklin D. Roosevelt issued an executive order that permitted the military to exclude “any or all persons” from militarily sensitive areas to prevent espionage and sabotage, and to house them in internment camps. The military used that power to order all people of Japanese ancestry, including U.S. citizens, removed from the West Coast.
Fred Korematsu, a U.S. citizen living on the West Coast, refused to leave and was convicted of disobeying a military order. With help from the American Civil Liberties Union, he appealed the verdict to the Supreme Court. But the court voted, 6-3, to uphold the internment policy as a justified national-security measure amid the wartime emergency.
Years later, that policy — and the Supreme Court ruling upholding it — became widely seen as wrong. In 1982, a congressional commission called the policy a “grave injustice” that stemmed from “race prejudice, war hysteria, and a failure of political leadership.” In a concurrence, the government said “the decision in Korematsu lies overruled in the court of history.”
In 1988, Congress passed a law, signed by President Ronald Reagan, providing $20,000 in reparations to each surviving detainee. A dozen years later, Justice Antonin Scalia invoked Korematsu as one of the most notorious mistakes of the court, alongside the Dred Scott decision, the pre-Civil War case denying freedom and citizenship to black slaves brought into free states.
A district court judge vacated Korematsu’s conviction in 1984, citing in part the discovery that the Roosevelt-era Justice Department had misled the judiciary about the need for the policy, including by citing claims that Japanese-Americans were signaling offshore submarines that the executive branch had already decided were probably not true.
But because the government did not try again to detain entire categories of people in a protected class like race or religion, no case presented a good vehicle for the Supreme Court to overturn the precedent.
The travel ban case, however, brought Korematsu back to the forefront. It traced back to Trump’s campaign proposal in 2015 to categorically bar Muslims from entering the United States. At the time, Trump cited with approval Roosevelt’s actions, including wartime restrictions placed on Americans of Japanese, German and Italian ancestry, and said he was not going that far.
“Take a look at what FDR did many years ago,” Trump said at the time. “He did the same thing.”
Over time, Trump’s call for a complete ban on Muslims entering the United States evolved into a ban on entry by nationals from a list of troubled countries, most of which were predominantly Muslim. Under the law, the president has the authority to bar groups of foreigners for national-security reasons.
The dispute before the Supreme Court was whether to block the government from carrying out a version of the ban Trump issued in September. Even though that directive was neutral about religion, the history and context, like Trump’s political rhetoric, suggested it was tainted by unconstitutional religious discrimination.
As the case unfolded, children of Japanese-Americans held in the detention camps and several public interest groups filed two supporting briefs urging the Supreme Court to see Trump’s latest travel ban as essentially a new version of Roosevelt’s order: demanding that the courts defer to the president’s claimed national-security judgments when he is, at least in effect, singling out an entire category of people based on a discriminatory animus.
But in his majority opinion, Roberts argued that Roosevelt’s act had “nothing to do” with the travel ban case. The “morally repugnant order” that forced Japanese-American citizens from their West Coast homes and into detention camps “solely and explicitly on the basis of race” was different from “a facially neutral policy denying certain foreign nationals the privilege of admission” into the country, he wrote.
“The entry suspension is an act that is well within executive authority and could have been taken by any other president — the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation,” he wrote.
Sotomayor, however, suggested that Roberts’ majority decision in Trump v. Hawaii may go down in Supreme Court history as a second coming of Korematsu.
“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, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another,” she wrote.
This article originally appeared in The New York Times.
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