The U.S. Supreme Court on Tuesday upheld President Donald Trump’s ban on travel from several mostly Muslim countries, but in the process also overruled an infamous 1944 decision that allowed the internment of 120,000 Japanese-Americans during World War II because of concerns over homeland defense following the attack on Pearl Harbor and the need to take “proper security measures.”
The repudiation of the 74-year-old decision in Korematsu v. United States came in response to a dissent in the travel ban case summarized by Justice Sonia Sotomayor, who likened it to the Korematsu decision, saying there were “stark parallels” in the reasoning.
This prompted a strongly worded response from Chief Justice John Roberts, who wrote the majority opinion for the five conservative justices in the 5-4 travel ban decision, that “Korematsu has nothing to do with this case” and “was gravely wrong the day it was decided.”
“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,” wrote Roberts. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.
“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.”
Roberts, then delivered the coup de grace, saying that the dissent’s reference to Korematsu “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.’ ”
Sotomayor’s dissent elaborated on Roberts’ claims, but slammed the majority’s ruling on the travel ban case.
“Today, the Court takes the important step of finally overruling Korematsu,” she said. “This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right.”
Sotomayor added that “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 the Korematsu case, the court ruled 6-3 that the U.S. government had the right to exclude and detain 120,000 Japanese-Americans during World War II. At the time, the U.S. Supreme Court called the imprisonment of citizens constitutional, a ruling that has been widely seen as a stain on the court.
The U.S. District Court in San Francisco cleared Korematsu’s conviction in 1983, but the Supreme Court ruling had remained on the books, without a similar case to raise the issue again until Tuesday.
In upholding Trump’s travel ban, the Trump administration takes home a big victory on an issue that is central to his presidency.
The Trump policy applies to travelers from five countries with overwhelmingly Muslim populations — Iran, Libya, Somalia, Syria and Yemen. It also affects two non-Muslim countries, blocking travelers from North Korea and some Venezuelan government officials and their families. A sixth majority Muslim country, Chad, was removed from the list in April after improving “its identity-management and information sharing practices,” Trump said in a proclamation.
In the majority opinion, Roberts wrote that presidents have substantial power to regulate immigration. He also rejected the challengers’ claim of anti-Muslim bias.
But he was careful not to endorse either Trump’s provocative statements about immigration in general or Muslims in particular, including Trump’s campaign pledge to keep Muslims from entering the country.
“We express no view on the soundness of the policy,” Roberts wrote.
The travel ban has been fully in place since December, when the justices put the brakes on lower court rulings that had ruled the policy out of bounds and blocked part of it from being enforced.
In a summary of the dissent, Sotomayor said, “History will not look kindly on the court’s misguided decision today, nor should it.” Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan also dissented.
Tom Ikeda, executive director of the Densho Institute, which documents the stories of those interned during World War II, said the court had both acknowledged a historic mistake and then repeated it.
“They are saying the same thing today — that these people are dangerous and we have to give the president deference because he knows more,” he told the San Francisco Chronicle on Tuesday. “As a Japanese American I’m really disappointed that the court hasn’t learned from history and the past.”
Information added from AP