High Court’s Wording Repudiates ’44 Korematsu Ruling, Upholds Travel Ban
Tuesday’s Supreme Court 5-4 decision in the Trump v. Hawaii lawsuit that affirmed the Trump administration’s third attempt to restrict travel from seven nations — five of which have populations in which Islam is the dominant religion — resulted in a good news/bad news reaction.
On one hand, civil libertarians were pleased that the Supreme Court appears to have repudiated its 1944 6-3 Korematsu v. the United States decision that upheld the constitutionality of President Roosevelt’s Feb. 19, 1942, Executive Order 9066.
Issued after Japan’s Dec. 7, 1941 attack on the U.S. naval base at Pearl Harbor in the territory of Hawaii, E.O. 9066 ordered the forcible removal from the U.S. West Coast more than 100,000 U.S. citizens of Japanese ancestry and legal resident Japanese nationals then-barred from becoming naturalized U.S. citizens, followed by the incarceration of those ethnic Japanese people into 10 inland concentration camps operated by the federal government.
Tuesday’s decision, however, was tempered by the high court’s decision that upheld the Trump administration’s attempt to bar travel from Iran, Libya, Somalia, Syria, Yemen, North Korea and Venezuela, which left dismayed the Japanese American Citizens League and several other civil rights and community organizations.
In a statement, the JACL said the Supreme Court “affirmed that the religious animus towards Islam can be ignored so long as the resulting policy appears on its face to be legitimately derived. This is exactly the logic that allowed 120,000 Japanese Americans to be incarcerated during World War II. JACL is deeply disappointed that the Supreme Court has misinterpreted the lessons from Korematsu, Hirabayashi and Yasui.”
“Korematsu may be overruled, but it’s not to be celebrated,” said Karen Korematsu, the daughter of Fred Korematsu and the founder and executive director of the Fred T. Korematsu Institute.
The American Civil Liberties Union’s Executive Director Anthony D. Romero weighed in on the matter, saying, “The five justices ruling in the majority performed a routine of judicial acrobatics to construct a legal argument sanctioning religious discrimination.”
In her dissent, Justice Sonia Sotomayer cited the 1944 Korematsu case and read aloud from the bench: “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.”
In repudiating Korematsu v. the United States, Chief Justice John G. Roberts Jr. wrote in the majority opinion: “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 added, however, that the dissent’s reference to Korematsu had “nothing to do with this case,” noting that the ban is “ … expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
The travel restrictions vary by country, with, for example, restrictions on Venezuela to be applied toward government officials only.
The JACL further reacted to the Supreme Court’s decision: “During World War II, the government made the case for military necessity, and the court willingly accepted that argument, ignoring the clear racist intent. Today, the parallels are clear with public statements from the president defining his intent to ban Muslims from entering our country. The majority opinion repudiates the racism at the heart of Korematsu, yet ignores the religious animus that has clearly guided the formation of the Muslim Ban.
“The majority decision states: ‘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. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.’
“We urge Congress to take action and rein in the anti-immigrant and anti-family policies of this president. Congress has the power to stop this discrimination and must act now.”
(The preceding was compiled from published news reports and other sources.)