How Trump Gave the Supreme Court a Second Chance on Japanese Internment
The president’s travel ban gives Anthony Kennedy an opening to right a historical wrong.
By RICHARD PRIMUS May 30, 2017
What will the Supreme Court do when President Trump’s travel-ban order finally comes before it? The most likely outcome is for the Court to declare the ban unconstitutional. The reasons why are straightforward, and last week’s ruling by the Fourth Circuit lays them out pretty clearly. In brief, the executive order was motivated by a purpose to discriminate against Muslims, and courts don’t have to pretend not to know what the motivation was. The order’s discrimination on the basis of religion violates the First Amendment, and even the president’s broad discretion on immigration policy does not authorize him to get away with discriminatory action merely by lying about his motives.
To be sure, a handful of dissenting judges and a larger number of commentators have disputed parts of this logic. But a large majority of judges—including Republican as well as Democratic appointees—have seen the order as unconstitutional for the reasons given above. The administration’s only hope of vindication before the highest court, therefore, is the possibility that the justices will prove considerably more lenient toward the order than their lower-court colleagues have been. That happens sometimes. But it seems unlikely to happen here, and not just because the best reading of existing case law points toward the order’s unconstitutionality.
Here’s one of the other reasons: The administration cannot win this case without Justice Anthony Kennedy. And Justice Kennedy could well see in this case an opportunity to do one of the things that he most loves to do, which is to intervene in the grand sweep of constitutional history by repudiating ugly decisions from the Court’s unfortunate past. In particular, the travel-ban case offers Kennedy the chance to overrule a widely reviled decision that has never been officially overruled: Korematsu v. United States.
In Korematsu, decided in 1944, the Court upheld a military order, supported in turn by an executive order, banning all persons of Japanese descent from large areas of America’s West Coast. Many of the people forced to leave their homes were sent to internment camps farther inland. The Court’s role in that chapter of American history has been a mark of shame on the institution for the better part of a century. And although the Japanese internment and the Trump administration’s travel ban are different in several important ways—discriminatorily refusing entry to aliens is not morally equivalent to discriminatorily imprisoning America’s own citizens—the constitutional issues surrounding the travel ban easily evoke central issues of Korematsu.
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http://www.politico.com/magazine/story/2017/05/30/donald-trump-korematsu-japanese-internment-supreme-court-215208