Anil Kalhan Profile picture
Jun 26, 2018 21 tweets 10 min read
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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More from @kalhan

Oct 7, 2018
Former @YaleLawSch Dean Robert Post: Kavanaugh's installation into the Supreme Court is an "American tragedy" politi.co/2pGXFx3
"With calculation and skill, Kavanaugh stoked the fires of partisan rage and male entitlement."
"If we expect judges to reach conclusions based solely on reliable evidence, Kavanaugh’s savage and bitter attack demonstrated exactly the opposite sensibility."
Read 4 tweets
Oct 7, 2018
This article loses its nerve right from its headline: this debacle is not just a blow to the Supreme Court's "image," but to its *legitimacy*.
A 5-4 right-wing majority—installed mostly by minority popular vote presidents, in the face of solid progressive majorities throttled using illegitimate means—does not "perfectly reflect" anything. To the contrary, it is a starkly imperfect reflection of where we are politically.
Partial credit to @adamliptak for this shade at the end of the piece, but it's far too mild in relation to the actual scale of the Court's legitimacy crisis.
Read 8 tweets
Oct 5, 2018
Self-serving talk is cheap. If @JeffFlake uses this nonsense to take cover he deserves all the ridicule that he will inevitably receive.
To quote Brett Kavanaugh himself, “I understand the passions of the moment, but ... your words have meaning.”
Read 10 tweets
Oct 3, 2018
Pleased to join so many colleagues in signing this letter.
"We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that [he] did not display the impartiality and judicial temperament requisite to sit on the highest court"
Over 900 signatories and counting, from over 150 law schools, as of this morning. lawprofessor.net
Read 5 tweets
Sep 30, 2018
This press release is practically begging for people to highlight and emphasize Kavanuagh's own repeated and obvious lies even more. #Kavanocchio 🤥
Read 21 tweets

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