Repudiates infamous Korematsu ruling

Supreme Court repudiates infamous Korematsu ruling

Liberal justices suggest a whitewash as conservatives repudiate the decision upholding internment of Japanese-Americans during WWII.

By JOSH GERSTEIN

The Supreme Court's ruling Tuesday upholding President Donald Trump's travel ban policy produced one unexpected result: the formal repudiation of an infamous 74-year-old precedent upholding the forcible transfer of Japanese-Americans to internment camps during World War II.

The extraordinary step by the court's five Republican-appointed justices appears to have been triggered by two liberal justices' upbraiding the majority for echoing a ruling widely seen as a failure to confront a racist policy implemented under the guise of a national security threat.

“Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States,” Justice Sonia Sotomayor wrote in her dissent, joined by Justice Ruth Bader Ginsburg. “Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric."

Chief Justice John Roberts’ majority decision expressed an air of offense at the dissenters’ suggestion that Trump’s travel ban was akin to the internment of U.S. citizens of Japanese origin.

“Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. 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,” Roberts wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”

The majority decision went on to take the step of formally repudiating the Korematsu ruling.

"The dissent’s reference to Korematsu ... affords this Court the opportunity to make express what is already obvious: 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,'" Roberts wrote.

That didn't satisfy Sotomayor, who suggested that her colleagues were trying to whitewash their opinion in favor of the travel ban by wiping a similarly racist ruling from the books.

Reading a summary of her views at length from the bench, Sotomayor called the majority’s ruling “devastating.” She called the court's formal overruling of Korematsu a “silver lining” in Tuesday's opinion but lamented that her fellow justices had swapped “one gravely wrong decision” for another.

"History will not look kindly on the court's decision today — nor should it," she declared.

Notably, two of the court's Democratic appointees, Justices Stephen Breyer and Elena Kagan, chose not to enter the fray over Korematsu.

In 2011, the Justice Department issued a formal "confession of error" in the Korematsu case, acknowledging that government lawyers misled the court about the security threat. The confession was ordered by the acting solicitor general at the time, Neal Katyal, who represented the challengers to the travel ban and came up on the losing end of the high court's 5-4 decision Tuesday.

Karen Korematsu, whose father, Fred, brought the Supreme Court case seven decades ago, was among the immigrant rights activists and civil liberties groups who fought Trump's travel ban policy in the courts.

The justices' official rejection of the Korematsu decision comes as numerous critics have been invoking the history of Japanese-American internment to condemn Trump's controversial zero-tolerance and family-detention policies toward illegal immigration and asylum seekers.