Continuing to Trade One Form of Discrimination for Another
On the second-to-last day of the term, the U.S. Supreme Court issued its decision in Trump v. Hawaii, reversing the courts of appeals’ decisions that upheld preliminary injunctions against the President’s infamous entry ban.
Trump addressed the third iteration of the President’s entry ban—the more permanent version that emerged from two interim bans, one of which contained an explicit religious preference, and the other warning of “so-called ‘honor killings.’” The decision quickly drew harsh commentary, which included scholars and political figures such as U.S. Representative John Lewis (D-Ga.) likening the decision to some of the Court’s worst mistakes of the past, including Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States.
Korematsu and the entry ban cases have drawn many comparisons, ever since the President first announced his plan for a total and complete shutdown of Muslims entering the United States and justified the proposal by invoking Korematsu. The Court in Korematsu upheld an order forcing Americans of Japanese descent into internment camps; President Donald Trump’s entry ban prohibits foreign nationals of several countries, most of which are majority Muslim, from entering the United States, even as refugees. Despite comparisons between the two policies, the Chief Justice’s 5-4 majority opinion in Trump decided to use the case as an opportunity to denounce Korematsu as wrongly decided.
The moment the Court denounced Korematsu was a bittersweet one, at best. People have waited over 70 years for the Court to officially renounce the case, and it was a mere seven years ago that the Solicitor General’s office admitted error in Korematsu and acknowledged that the federal government had not been forthcoming with evidence that the internment order rested less on national security and more on naked racism (there was already plenty of evidence on that point in the public record).
Part of what made the Court’s denunciation of Korematsu so bittersweet is that the majority appeared only to deign to denounce the decision in response to the powerful dissent by Justice Sonia Sotomayor that invoked the many parallels between the entry ban and the internment order in Korematsu.
As Justice Sotomayor pointed out, in both cases “the Government invoked an ill-defined national security threat to justify an exclusionary policy,” “the exclusion order was rooted in dangerous stereotypes,” and “the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect.”
In response, Chief Justice John Roberts wrote 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.”
But the Court’s “overruling” of Korematsu—if you can even call it that—was even worse than that dismissive opprobrium. It was also a telling example of how the Court regularly reinforces discrimination while purporting to reject it.
Professor Reva Siegel coined the phrase “preservation-through-transformation” to describe how the Court goes out of its way to reject certain forms of discrimination while legitimating other forms of discrimination, and reinforcing them in the process. The Court will often reject an “older” form of discrimination while distinguishing “newer” forms of discrimination that are at work in the present day. A natural human tendency is to rationalize the way things are, and that can involve insisting that we, as a present-day people, are better than our predecessors. The end result of this process is, as Siegel observed, to reinforce status-based hierarchies by shifting their forms.
At some point in the future, the next generation will look back and view as some combination of incoherent and morally unsound what the previous generation rationalized and normalized. This story of race discrimination, in particular, illuminates the Court’s use of Korematsu in Trump.
In Siegel’s telling, the preservation-through-transformation story of American race discrimination begins with Dred Scott, which held that blacks were not citizens of the United States and could be owned as property. At the next stage, the law rejected Dred Scott and the idea that blacks could not be citizens of the United States. In interpreting the Fourteenth Amendment to reject thinking exemplified by Dred Scott, however, the Court distinguished Dred Scott from a system of discrimination that courts and large segments of white society viewed as legitimate at the time—the system of black codes that prohibited blacks from voting, serving on juries, and participating in other aspects of political life. At the time, that distinction struck a good number of people as a reasonable one.