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.
Uneasy Money 