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Ironic Overruling

June 29, 2018

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). . . . But it is wholly inapt . . . to a facially neutral policy denying certain foreign nationals the privilege of admission. 

 

The dissent’s reference to Korematsu, however, 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.” 323 U. S., at 248 (Jackson, J., dissenting) (Slip op at 38).

 

In Trump v. Hawaii, a 5-4 majority of the Supreme Court, with Chief Justice Roberts writing, upheld the Trump travel ban (more technically, it reversed a district court injunction that applied nation-wide). The majority purported to overturn Korematsu v. United States (1944), among the most vilified Supreme Court rulings. Korematsu upheld an executive order authorizing the forcible removal and relocation of Japanese Americans on the West Coast into internment camps based solely on national ancestry. 

 

Trump v. Hawaii doesn’t actually overrule Korematsu, at least assuming the majority is not free simply to pluck disfavored cases and announce their over rulings as a public relations ploy that detracts from what it actually is doing in the immediate case. The Supreme Court has emphasized that it should not be presumed to overrule. It does so only when the disfavored precedent stands as an insurmountable obstacle to the immediate ruling. Even then, the Court first assesses, among other considerations, the potential costs of overruling for the stability of legal doctrine and relevant reliance interests. Conventional jurisprudential norms—ones the Supreme Court routinely claims to honor—renders the claimed Korematsu overruling ironic or worse. At best, the discussion is dictum, a statement beyond what is needed to resolve the immediate case. At worse, it is a cynical move that further empowers this administration, with five justices channeling three wise monkeys: see no evil, hear no evil, speak no evil. 

 

The majority and dissent in Trump v. Hawaii occupy alternative worlds. The case is a microcosm of the nation as a whole. The majority construes a neutrally worded presidential proclamation that identifies several specific nations, not all Muslim-majority, and each with a claimed record of problematic vetting assurances. The ruling allows the President to block non-immigrant visas from those nations. The dissent looks past the neutral wording, focusing on what Trump repeatedly announced in his campaign, the failure of an earlier executive order that more obviously targeted Muslims, and Trump’s clear command to figure out how to accomplish the same policy lawfully. So viewed, Trump accomplished a religious gerrymander, a technically neutral policy that deliberately avoided terminology revealing an obviously illicit intent, thereby violating the Establishment Clause.  

 

The majority applies rational basis scrutiny, the lowest level of review. The dissent applies strict scrutiny, a generally damning test, based on its finding of religious animus. Responding to arguments on the underlying motivation, Chief Justice Roberts, writing for the majority, states: “Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements.” (Slip op at 29). Perhaps. But surely “the issue before [the Court] is not whether to denounce” unpopular precedents simply to gain political favor or to distract from an actual ruling. 

 

Overturning Korematsu was not merely unnecessary to the Court’s ruling; Korematsu is entirely reconcilable with it. Korematsu, like Trump v. Hawaii, sustained a challenged law isolating a particular population for adverse treatment due to a fear that some members of that group might pose a national security risk. True, the executive order at issue in Korematsu was facially discriminatory based on national origin, whereas the executive order at issue in Trump v. Hawaii was crafted to avoid clear anti-Muslim language. Even so, both orders treated members of groups in common based on the risk that some members might pose a danger. 

 

The Korematsu majority, with Justice Black writing, claimed to apply strictest scrutiny, and yet it sustained the challenged order. In dissent, Justice Murphy claimed to apply rationality review and to find no rational justification for treating Japanese Americans as a group. A challenge in teaching Korematsu is convincing students that both of these approaches are problematic. Rationality doesn’t mean uplifting. It means capable of a credible justification. If some members of a group risk posing a threat, and if time is truly of the essence, it might be deeply offensive, but not irrational, to treat the group as a whole. Rather than explaining why Korematsu was correct, the flaw in Murphy's analysis demonstrates the importance of applying strict scrutiny in a meaningful way. The difficulty is that the Korematsu majority chose to treat the burdens of internment as akin to other burdens of war, for example, those of soldiers, or their loved ones, based on their personal sacrifices. But ascribing presumptive fault based on demographic criteria alone is different. It is using the state’s coercive powers, it war powers, against members of its own population, thereby eviscerating due process. Korematsu helps to explain why we rightly insist on far more piercing scrutiny than rationality review when assessing policies classifying based on race, religion, or national origin. Instead we insist upon strict scrutiny, and under that test, presuming fault based solely on national origin is a paradigmatic denial. 

 

As compared with Korematsu, Trump v. Hawaii reversed things. The majority applied rationality review and sustained Trump’s order; the dissent applied strict scrutiny and voted to strike it down. Here the tests worked as predicted. Assuming Roberts did so, overruling Korematsu might mean that Justice Black, for the Korematsu majority, was wrong to apply strict scrutiny in assessing the internment order. That would lessen protections, not raise them, and it would hardly make the “overruling” an event to celebrate. I don’t think that’s what Roberts means. Alternatively, Roberts might mean that considering restrictions on personal rights due to such matters as religion or national origin requires giving truly meaningful process to each individual, rather than applying conclusive presumptions based on group affiliation. But that too can’t be right as it would align Roberts with those in dissent. 

 

Chief Justice Roberts once famously criticized law professors for writing articles with no bearing on real cases. He is mistaken. His Korematsu discussion is rather like an actual law review article, allowing the Chief Justice to express his normative view on a problematic case. Perhaps one day, Roberts might encounter a case in which he views Korematsu as a genuine obstacle to doing what’s right. If so, that would give him an opportunity to overrule Korematsu. It’s unfortunate that Trump v. Hawaii wasn’t that case.

 

I welcome your comments. 

 

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