Thursday, June 28, 2018

The travel ban decision echoes some of the worst Supreme Court decisions in history

The logic SCOTUS used to uphold the travel ban would justify Japanese internment camps.

By Aziz Huq  Jun 26, 2018, 3:40pm EDT

Three times in American history, the Supreme Court has been asked to speak to a law, neutral on its face, yet rooted in a popular hatred or intolerance of minorities. Three times, it has chosen to ignore the real reasons for the law.

Three times, it has instead given a free pass to laws and policies predicated on discriminatory judgments that our Constitution supposedly bars.

The first was Plessy v. Ferguson. In 1896, the Plessy Court upheld Homer Plessy’s conviction under Louisiana’s law mandating “equal but separate” railroad carriages. The central plank of the Court’s argument was simple: If Homer Plessy experienced a “badge of inferiority,” it was “not by reason of anything found in the act,” but “solely” because he chose to view the law that way.

The second was Korematsu v. United States ­ — the Japanese internment camp case. Famously, the case upheld in 1944 an executive order by President Franklin Roosevelt, authorizing “military areas … from which any or all persons may be excluded.” The Court reviewed “evidence” that Congress had gathered about the Japanese government’s “dissemination of propaganda and … maintenance of … influence” among Japanese Americans.

It carefully framed its Korematsu opinion as focused on a policy of “exclusion,” ignoring the network of civilian assembly centers and “relocation” camps — as the internment camps were euphemistically known — that ultimately held between 110,000 and 120,000 people.

The Court expressly refused to look beyond these proffered justifications — justifications that in the fullness of time were revealed as false. Rather, it rejected the discrimination issue because it “merely confuses the issue.” Emphasizing that “we are at war” and that “time was short,” the Court deferred to the decision of “properly constituted military authorities.”

Even at the time, the problem with this logic was apparent: As Justice Robert Jackson cautioned, the Court’s embrace of the deference meant that judges would “never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”

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