Anil Kalhan • Profile picture
Law prof @DrexelUniv • Affiliated fellow @YaleISP • @NYCBarAssn Rule of Law Task Force • • •

Jun 26, 2018, 21 tweets

Going out on a bold and really courageous limb there. #MuslimBan

Also, what exactly would Roberts have people believe they're "overruling"? It's entirely disingenuous. As Justice Sotomayor notes in her dissent, there are "stark parallels between the reasoning of this case and that of Korematsu." 1/

Like Chief Justice Roberts's opinion in Trump v. Hawaii, Justice Black's opinion in Korematsu rests on a failure to examine the true reasons behind an order that facially purports to rest on grounds other than discrimination. 2/

Here's Justice Hugo Black in Korematsu: "Korematsu was not excluded...because of hostility to...his race. He was excluded because... [authorities] felt constrained to take proper security measures [and] decided that the military urgency of the situation demanded [exclusion]." 2/

Now compare Roberts in Trump v. Hawaii: "The Proclamation is expressly premised on legitimate purposes: Preventing entry of nationals who cannot be adequately vetted and inducting other nations to improve their practices. The text says nothing about religion." 3/

Black in Korematsu: "There was evidence of disloyalty on the part of some."

Roberts in Trump v. Hawaii: Trump's order covers "countries that were previously designated by Congress or prior administrations as posing national security risks." 4/

Black in Korematsu: "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 the time these actions were unjustified." 5/

Roberts in Trump v. Hawaii: "we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which 'are delicate, complex, and involve large elements of prophecy.'" 6/

"Whatever rhetorical advantage" (ahem) Roberts may see in characterizing Korematsu as affirming internment "solely and explicitly on the basis of race"—so he can congratulate himself for "making express" that it has been "overruled"—that's not what Black's opinion validates. 7/

At the time, Justice Jackson—whose dissenting opinion in Korematsu Roberts now rushes to cite and claim as consistent with his own reasoning—fully understood this about Black's opinion. 8/

Jackson: "it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them." 9/

Jackson: "[I]f we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not." 10/

Jackson: "How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court." 11/

Chief Justice Roberts is all to happy to associate himself with Justice Jackson's widely respected dissent in Korematsu so he can try to grab its reputational benefits. But actually heeding its reasoning, reflective thoughtfulness, and animating principles? Not so much. 12/

Of course, as Peter Spiro (@AfterTheState) notes, in the course of making a different observation about Trump v. Hawaii, John Roberts is no Robert Jackson. 13/

Contrary to what Roberts insists, Korematsu has plenty "to do with this case." And you know who else thinks so? The Japanese American Citizens League and the children of the Japanese American men who fought internment in court—they filed amicus briefs opposing the #MuslimBan. 14/

Given a choice between how Roberts, Kennedy, Thomas, Alito, and Gorsuch self-servingly characterize Korematsu v. United States and how @JACL_National and @Korematsu understand its significance, I'll go with JACL and Karen Korematsu any day of the week. 15/

Justice Sotomayor understands and gets this entirely right. 16/

In at least one very specific respect, Trump v. Hawaii might even be clearly worse than Korematsu, since, as @neal_katyal noted in his 2011 "confession of error" when he was Solicitor General, the Court had been misled by the government in Korematsu. 17/

By contrast, the animus forming the basis for Trump's #MuslimBan has been plain for the entire world to see—Sotomayor recounts the "harrowing picture" that everyone already knows, but which the majority downplays and insists is irrelevant. 18/

Oh and by the way—you know who else has stated that Japanese American internment has plenty to do with Trump's #MuslimBan? 19/

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