The Monumental Dishonesty and Appalling Bad Faith of Chief Justice Roberts’s Decision

Noah Feldman brilliantly exposes the moral rot underlying the horrific Supreme Court decision handed down today approving the Muslim ban, truly, as Feldman describes it, a decision that will live in infamy in the company of Dred Scott and Korematsu. Here are the key passages from Feldman’s masterful unmasking of the faulty reasoning of the Roberts opinion

When Chief Justice Roberts comes to the topic of bias, he recounts Trump’s anti-Muslim statements and the history of the travel ban (this is the administration’s third version). Then he balks. “The issue before us is not whether to denounce the statements,” Roberts writes. Rather, Roberts insists, the court’s focus must be on “the significance of those statements in reviewing a presidential directive, neutral on its face, addressing the matter within the core of executive responsibility.”

That is lawyer-speak for saying that, despite its obviousness, the court would ignore Trump’s anti-Muslim bias. Roberts is trying to argue that, when a president is acting within his executive authority, the court should defer to what the president says his intention is, no matter the underlying reality.

That’s more or less what the Supreme Court did in the Korematsu case. There, Justice Hugo Black, a Franklin D. Roosevelt loyalist, denied that the orders requiring the internment of Japanese-Americans were based on racial prejudice. The dissenters, especially Justice Frank Murphy, pointed out that this was preposterous.

Justice Sonia Sotomayor, the court’s most liberal member, played the truth-telling role today. Her dissent, joined by Justice Ruth Bader Ginsburg, states bluntly that a reasonable observer looking at the record would conclude that the ban was “motivated by anti-Muslim animus.”

She properly invokes the Korematsu case — in which, she points out, the government also claimed a national security rationale when it was really relying on stereotypes. And she concludes that “our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”

Roberts tried to dodge the Korematsu comparison by focusing on the narrow text of the order, which, according to Roberts, on its own terms – absent the statements made by the author of the ban himself — is not facially discriminatory. Feldman skewers that attempt.

Roberts certainly knows the consequences of this decision. He tries to deflect the Korematsu comparison by saying that the order as written could have been enacted by any other president — a point that is irrelevant to the reality of the ban. Roberts also takes the opportunity to announce that Korematsu “was gravely wrong the day it was decided [and] has been overruled in the court of history.”

In another context, we might well be celebrating the fact that the Supreme Court had finally and expressly repudiated Korematsu, which it had never fully done before. Instead, Roberts’s declaration reads like a desperate attempt to change the subject. The truth is that this decision and Korematsu are a pair: Prominent instances where the Supreme Court abdicated its claim to moral leadership.

Following up Feldman, I just want to make it absolutely clear how closely, despite Roberts’s bad faith protestations to the contrary, the reasoning of his opinion follows the reasoning of the Korematsu court (opinion by Justice Black).

From the opinion of Chief Justice Roberts, attempting to counter the charge by Justice Sotomayor in her dissent that the majority was repeating the error of Korematsu.

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). 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. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. 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.

This statement by the Chief Justice is monumentally false and misleading and utterly betrays either consciousness of wrongdoing or a culpable ignorance of the case he is presuming to distinguish from the one that he is deciding. Here is the concluding paragraph of Justice Black’s opinion in Korematsu.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.

Justice Black is explicitly denying that the Japanese American citizens being imprisoned were imprisoned because of racial prejudice.

Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order.

And Justice Black denies that the Japanese Americans were sent to concentration camps.

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.

Contrary to the assertion of Chief Justice Roberts, the Korematsu court did not “solely and explicitly” relocate U.S. citizens to concentration camps solely on the basis of race. Justice Black explicitly rejected that contention. So his attempt to distinguish his opinion from Justice Black’s majority opinion fails. Indeed Mr. Justice Black bases his decision on statutory authority given to the President by Congress, his inherent powers as Commander-in-Chief, and his assessment of the military danger of an invasion of the West Coast by the Japanese.

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

In almost every particular, Justice Black’s decision employed the exact same reasoning that the Chief Justice now employs to uphold the travel ban. Justice Black argued that the relocation could have been motivated by reasons of national security, just as Chief Justice now argues that the travel ban was motivated by reasons of national security. Justice Black argued that the military must be trusted to make decisions about which citizens might be disloyal and could pose a national security threat in time of war just as Chief Justice Roberts now argues that the President must be allowed to make national security decisions about who may enter the United States from abroad. Neither Justice Black nor Chief Justice Roberts is prepared to say that singling out a group based on race or religion is unjustified.

The only distinction between the cases is that Korematsu concerned the rights of American citizens not to be imprisoned without due process, and the travel ban primarily affects the rights of non-resident aliens. Clearly an important distinction, but the rights of American citizens and resident aliens are also implicated. Their rights to be free from religious discrimination are also at issue, and those rights may not be lightly disregarded.

Chief Justice Roberts concludes by attempting to distract attention from the glaring similarities between his own decision and Justice Black’s in Korematsu.

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.” (Jackson, J., dissenting).

But in doing so, Chief Justice Roberts only provides further evidence of his own consciousness of wrongdoing and his stunning display of bad faith.

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12 Responses to “The Monumental Dishonesty and Appalling Bad Faith of Chief Justice Roberts’s Decision”


  1. 1 James Beckman June 27, 2018 at 2:54 am

    The fact then becomes that no allowable reason is given, leading us to believe the President can do anything by ignoring his words. Perhaps he wants to add a couple of judges to the Supreme Court bench, ignoring the constitution, because he wants to. Or perhaps for the sake of “national security” or “avoiding bad dreams” or “because that is his ethical system”.
    We are a Banana Republic, folks.

  2. 2 nottrampis June 27, 2018 at 5:49 pm

    Your Supreme court is a very political institution.

  3. 3 Egmont Kakarot-Handtke June 28, 2018 at 6:41 am

    Beware of the moralizing economist
    Comment on David Glasner on ‘The Monumental Dishonesty and Appalling Bad Faith of Chief Justice Roberts’s Decision’

    David Glasner applauds the exposure of “the moral rot underlying the horrific Supreme Court decision handed down today approving the Muslim ban, truly, …, a decision that will live in infamy …” and concludes his post with: “But in doing so, Chief Justice Roberts only provides further evidence of his own consciousness of wrongdoing and his stunning display of bad faith.”

    The first thing to notice is that whatever the whole post is about it is NOT economics. Now, the economist as scientist is supposed to figure out how the monetary economy works. Science is about IS not OUGHT and because of this, a scientist is NOT supposed to pass moral judgment. Science is about knowledge with truth well-defined as material and formal consistency. As a matter of principle, all moral issues have to be discussed in the political realm and ultimately decided by the Legitimate Sovereign. The economist takes part in this process just like any other citizen and NOT in his capacity as scientist.#1

    The problem with economists is that they are incompetent scientists and have NOT figured out to this day how the economy works. Fact is that neither right-wing nor left-wing policy guidance ever had sound scientific foundations. Walrasianism, Keynesianism, Marxianism, Austrianism is mutually contradictory, axiomatically false, materially/formally inconsistent and all got the pivotal economic concept profit wrong.

    There is political economics and theoretical economics. The main differences are: (i) The goal of political economics is to successfully push an agenda, the goal of theoretical economics is to successfully explain how the actual economy works. (ii) In political economics anything goes; in theoretical economics, the scientific standards of material and formal consistency are observed.

    Theoretical economics (= science) had been captured from the very beginning by political economists (= agenda pushers). Political economics has produced NOTHING of scientific value in the last 200+ years.

    Political economics is NOT science but agenda pushing and the communicative tools of agenda pushing are not proof or logical/empirical refutation but rhetoric and moralizing and attention management in all variants from like/dislike to hype/condemnation.

    Science and politics are entirely different realms and they run on incompatible principles. Both realms have to be kept strictly apart because politics always and everywhere corrupts science. This happened in economics.#2, #3, #4

    To comment on Supreme Court decisions is NOT the business of the economist. The exposure of “the moral rot” of the judiciary is NOT the business of the economist.

    The morality of the economist consists in the adherence to the ethics of science. The ethics of science requires first and foremost to uphold the strict separation of science and politics.#5

    Political economics is a monument of dishonesty and bad faith. The only problem of economists in general and David Glasner, in particular, is the “the moral rot” of economics.#6

    Egmont Kakarot-Handtke

    #1 The moralizing economist is not a good guy but a fake scientist
    https://axecorg.blogspot.com/2017/08/the-moralizing-economist-is-not-good.html

    #2 For details of the big picture see cross-references Political Economics
    http://axecorg.blogspot.com/2015/11/political-economics-cross-references.html

    #3 Economics: a science without scientists
    https://axecorg.blogspot.com/2016/10/economics-science-without-scientists.html

    #4 Money and the Unflappable Economist
    https://www.ineteconomics.org/perspectives/blog/money-and-the-unflappable-economist

    #5 Scientific suicide in the revolving door
    https://axecorg.blogspot.com/2016/11/scientific-suicide-in-revolving-door.html

    #6 For details of the big picture see cross-references Failed/Fake Scientists
    http://axecorg.blogspot.com/2015/11/failedfake-scientists-cross-references.html

  4. 5 David R. Henderson June 28, 2018 at 12:20 pm

    Egmont, I’m not defending David’s post. I actually think it’s more complicated than he does. I don’t think the decision and the rationale come close to Dred Scott or Korematsu territory.
    But you’re making a simple category mistake. The fact that economics is ideally value free does not at all imply that economists must be value free. David is clearly expressing his views as a human or American–take your pick. Of course, his values are revealed in that expression, but that violates no norms about economics.

  5. 6 Frank Restly June 28, 2018 at 6:49 pm

    Egmont,

    “Theoretical economics (= science) had been captured from the very beginning by political economists (= agenda pushers).”

    Please remember that the science of economics is based upon political / legal constructs – not some “natural law” that exists throughout the known universe. It’s not like property rights or contract law existed before some “agenda pushers” decided they should be enforced by a legal authority.

    I believe that David makes a valid point in that the Supreme Court’s decision on the case at hand (acceptance of Trump’s Muslim ban) seems to be at odds with a prior case that was overturned (Korematsu case).

    Finally, political economy is more than agenda pushing (though there is certainly a substantial of that going on). In a nutshell, political economy covers instances where it is more economically efficient to share ownership of resources rather than designate singular ownership. That covers a lot of ground including national defense, common currency, natural waterways, etc.

    In traditional micro-economics the smallest economic model consists of two individuals that engage in a trade. In political economics, the smallest economic model consists of three individuals that form a voting majority on a trade.

  6. 7 dingo342014 June 29, 2018 at 2:00 am

    “Please remember that the science of economics is based upon political / legal constructs – not some “natural law” that exists throughout the known universe. It’s not like property rights or contract law existed before some “agenda pushers” decided they should be enforced by a legal authority.”

    Well said. However I would add in Egmonts defence that once ‘laws’ are put into place which deal with how flows and stocks can be treated, then from this point it should be treated as a science because one cannot theorize on how a contract or law is played out – either rights and duties are fulfilled or they are not – there is no gray area. Before that point however, i.e. ‘what laws should we make?’, this is the domain of politics and the so-called collective wisdom it is supposed to contain. But, as Egmont keeps saying, if the collective wisdom doesn’t even know how legal rights and duties (money and property) come into existence, how can they satisfactorily pass good laws?

    I am not sure economics can ever be treated a science, otherwise it would reveal the inherent flaws in markets and in models which rely on romantic notions such as barter and equality.

  7. 8 Egmont Kakarot-Handtke June 30, 2018 at 2:11 am

    Frank Restly

    You say: “Please remember that the science of economics is based upon political / legal constructs – not some ‘natural law’ that exists throughout the known universe.”

    Please remember that the science of economics is NOT a social science but a system science.#1 And while there is NO such thing as behavioral/social laws there exist systemic laws. These are the subject matter of economics.

    Please remember that economists have until this day not figured out the systemic laws of the monetary economy.

    Please remember that economists can to this day not say what profit is and what the macroeconomic Profit Law states and implies.#2

    Please remember that economics does not satisfy to this day the scientific criteria of material and formal consistency.

    Please remember that it is the first duty of the scientist to look after the scientific and moral rot of his own discipline.#3

    Egmont Kakarot-Handtke

    #1 For details see cross-references Not a Science of Behavior
    http://axecorg.blogspot.com/2015/12/behavior-cross-references.html

    #2 Profit: after 200+ years, economists are still in the woods
    https://axecorg.blogspot.com/2018/06/profit-after-200-years-economists-are.html

    #3 For details see cross-references Failed/Fake Scientists
    http://axecorg.blogspot.com/2015/11/failedfake-scientists-cross-references.html

  8. 9 Frank Restly July 2, 2018 at 2:37 pm

    Egmont,

    “Please remember that the science of economics is NOT a social science but a system science. And while there is NO such thing as behavioral/social laws there exist systemic laws. These are the subject matter of economics.”

    Those systemic laws are laws created by man and subject to change. That was the point of David’s article. In judicial legal settings, interpretations of law by various courts set precedent on how future decisions regarding similar circumstances should be judged. David merely pointed out that the Supreme Court appears to be contradicting it’s own prior ruling (Korematsu Case) with it’s new ruling (Trump Muslim ban).

    If you disagree with David’s conclusion, so be it.

    Likewise, I (or any other person) am free to act in defiance of those laws and suffer the potential consequences from a governing body. Can the same be said of a planet that wishes to disregard it’s own gravitational attraction to the sun?

    “Please remember that economists have until this day not figured out the systemic laws of the monetary economy.”

    In a monetary economy, the guiding “laws” are taxation and contract enforcement. Once I pay my taxes and make timely payments on my debts, I can choose to do whatever I wish with the remainder of my paycheck.

    And sure there are accounting identities that equate one person’s expenditure with another’s income. But that is all they are – there is no causal link between the two because of choice.

    “Please remember that economists can to this day not say what profit is and what the macroeconomic Profit Law states and implies.”

    I think you mentioned that already.

    “Please remember that economics does not satisfy to this day the scientific criteria of material and formal consistency.”

    I am all for consistency of modeling in any science. But I also understand that models can give incomplete pictures of the real world.

    “Please remember that it is the first duty of the scientist to look after the scientific and moral rot of his own discipline.”

    I didn’t realize that you view economics with a religious bent.
    Consider me agnostic.

  9. 10 Egmont Kakarot-Handtke July 3, 2018 at 5:37 am

    Frank Restly

    You say: “Those systemic laws are laws created by man and subject to change.”

    You are playing with the double sense of the word law. Laws in the scientific sense are NOT created by man but are what Nozick has called invariances.#1

    The monetary economy is a system and subject to objective-systemic laws e.g. the Profit Law or the Employment Law.#2

    You say: “And sure there are accounting identities that equate one person’s expenditure with another’s income.”

    These alleged accounting identities are provably false because economists are too stupid for the elementary mathematics of accounting.#3 The statement that one person’s expenditure is another person’s income is the fundamental blunder of economics.#4, #5, #6

    Walrasianism, Keynesianism, Marxianism, Austrianism is mutually contradictory, axiomatically false, and materially/formally inconsistent. With this pluralism of provably false theories, economics does not satisfy the well-defined criteria of science.#7 Economics is a failed science but economists award themselves the “Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel”. This is the ultimate “Monumental Dishonesty and Appalling Bad Faith” that catapults economists forever out of the scientific community.

    Egmont Kakarot-Handtke

    #1 Economics: stories, narratives, and disinformation
    https://axecorg.blogspot.com/2017/10/economics-stories-narratives-and.html

    #2 False and true economic laws
    https://axecorg.blogspot.com/2016/09/false-and-true-economic-laws.html

    #3 For details see cross-references accounting
    http://axecorg.blogspot.com/2016/12/accounting-cross-references.html

    #4 Macro for dummies
    https://axecorg.blogspot.com/2017/07/macro-for-dummies.html

    #5 Humpty Dumpty is back again
    https://axecorg.blogspot.com/2015/11/humpty-dumpty-is-back-again.html

    #6 MMT and the magical profit disappearance
    https://axecorg.blogspot.com/2017/08/mmt-and-magical-profit-disappearance.html

    #7 The miracle cure of economists’ micro-macro schizo
    https://axecorg.blogspot.com/2018/07/the-miracle-cure-of-economists-micro.html

  10. 11 Frank Restly July 4, 2018 at 8:49 am

    Egmont,

    “You are playing with the double sense of the word law. Laws in the scientific sense are NOT created by man but are what Nozick has called invariances.”

    I believe that it is you that is that is playing fast and loose with the word law.

    https://en.wikipedia.org/wiki/Scientific_law

    “A scientific law always applies under the same conditions, and implies that there is a causal relationship involving its elements. Factual and well-confirmed statements like Mercury is liquid at standard temperature and pressure are considered too specific to qualify as scientific laws. A central problem in the philosophy of science, going back to David Hume, is that of distinguishing causal relationships (such as those implied by laws) from principles that arise due to constant conjunction.”

    Given:

    1. Much of economics involves free will choices where no singular definitive CAUSE can be identified.

    2. Economics consists of events that are separated by both space and time.
    As such any “Law” that attempts to describe those events must incorporate those space / time discrepancies.

    Your profit “law”:

    https://axecorg.blogspot.com/search?q=Profit+Law

    The axiomatically correct macroeconomic Profit Law reads:

    (i) for the pure production-consumption economy with profit distribution
    Qm=Yd−Sm

    (ii) for the investment economy with profit distribution,
    Qm =Yd+I−Sm

    Legend: Qm monetary profit, Yd distributed profit, Sm monetary saving, I investment expenditure

    Which is fine except for the fact that time and causality are not addressed.

    Is the “law”:

    Qm(t) = Yd(t+1) – Sm(t+1)

    Or is it:

    Qm(t+1) = Yd(t) – Sm(t)

  11. 12 Egmont Kakarot-Handtke July 5, 2018 at 4:06 am

    Frank Restly

    You said: “Those systemic laws are laws created by man and subject to change.”

    This proves that you are methodologically light years behind the curve. In very general terms, science is about invariances: “An objective fact is one that is invariant under all admissible transformations.” (Nozick) Translated into economics this means that economists have to figure out the systemic economic laws that underlay the ever-changing historical surface.#1

    “In order to tell the politicians and practitioners something about causes and best means, the economist needs the true theory or else he has not much more to offer than educated common sense or his personal opinion.” (Stigum)

    Economists lack the true theory. Fact is that economics is a failed science. The four main approaches ― Walrasianism, Keynesianism, Marxianism, Austrianism ― are mutually contradictory, axiomatically false, and materially/formally inconsistent.

    Economics is a cargo cult science but claims since Adam Smith/Karl Marx to be a science. This is nothing but “Monumental Dishonesty and Appalling Bad Faith”.

    Egmont Kakarot-Handtke

    #1 The Synthesis of Economic Law, Evolution, and History
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2500696


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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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