The Washington Post: “How a 1944 decision on Japanese internment affected the Supreme Court’s travel ban decision"

by Joseph McKeown

Last week, the Supreme Court in Trump v. Hawaii upheld President Trump’s travel ban that targeted several Muslim-majority countries, saying that the president had the authority to make national security judgements regarding immigration, despite anti-Muslim statements that he has made. In her dissent, Justice Sonia Sotomayor says the decision is no better than the one in Korematsu v. United States, the universally criticized and much maligned 1944 decision that allowed for the internment of Japanese-Americans during World War II. While Sotomayer praises the court for repudiating Korematsu in Trump v. Hawaii, she writes in her dissent: “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.” 

Richard Primus, a law professor at the University of Michigan, also notes parallels between the two court decisions. The first, and most notable, is that both cases involve an executive order or proclamation that promotes a policy for dubious reasons of national security. Justice Sotomayor’s writes in her dissent that as is true in Hawaii, the government in Korematsu was unwilling to reveal “its own intelligence agencies’ views of the alleged security to the very citizens it purported to protect." In 2011, the Justice Department admitted that in the Korematsu case intelligence reports that “undermined the rationale behind the internment” of Japanese immigrants and US citizens was never presented to the Supreme Court. Instead, the solicitor general at the time relied upon discriminatory generalizations about Japanese Americans, including that they were disloyal and motivated by racial solidarity.

Another similarity between Korematsu and Hawaii is that both try to ignore the issue of race and prejudice. “As a factual matter, the entry ban would not exist without Trump’s bigotry towards Muslims,” Primus says. Primus points out that Sotomayor says that “we are again giving the executive government a pass on an animus-based measure because the executive branch is hiding behind a national security claim.” 

In his majority option, Chief Justice John G. Roberts Jr. states that Korematsu was “gravely wrong the day it was decided” and "'has no place in the Constitution,'" and rejects the notion that the majority’s decision in Trump v. Hawaii is similar to Korematsu. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” he writes. “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.”

Karen Korematsu, the daughter of Fred Korematsu, the plaintiff in Korematsu v. United States, also sees similarities between the two cases. “Korematsu may be overruled, but it’s not to be celebrated,” she tells the Washington Post. “Unfortunately with this decision, we are continuing to repeat history.”