Our late colleague, journalist and journalism professor Jake Highton, was a United States Supreme Court buff. He followed the actions of the court carefully and wrote about those actions frequently. He studied its history, once writing a long paper on the court packing plan of Franklin Roosevelt. One of Jake’s books, Defrocking the Supreme Court, was a compilation of his writings on the court.
There was one court case that was a particular bone in Jake’s throat—Korematsu v. United States, in which the court upheld the legality of kidnapping U.S. citzens from West Coast regions and throwing them into internment camps. Though he did not rank it among the court’s worst (“Top 10 worst Supreme Court decisions” by Jake Highton, RN&R, March 8, 2012), he still despised it and judged the members of the court by it. In one exchange of notes with a friend, when the friend expressed admiration for Justice Wiley Rutledge, Highton looked up the vote on Korematsu and found that Rutledge had failed that 1944 test.
We wish Jake had lived to see Korematsu finally overturned. That’s what happened last week, and we don’t know whether he would have laughed or cried.
In a majority opinion, Justice Anthony Kennedy wrote, “The dissent’s reference to Korematsu, however, 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.’”
That last phrase is in quotation marks because it is from Justice Robert Jackson’s 1944 dissent in Korematsu.
Readers may not be aware Korematsu was overturned because it has received little attention—and because it was done in tawdry fashion. The deed was done in Hawaii vs. United States, the ruling in which the court upheld the Muslim travel ban. And the section we quoted from Kennedy’s opinion was apparently not in his original version.
In her dissent, Justice Sonia Sotomayor wrote, “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.”
Invoking the detestable 1944 case forced Kennedy to address it, which he did, half-heartedly, by overruling it. He never addressed Sotomayor’s linkage between the cases.
Hawaii, like Korematsu, is poorly crafted. Legal scholar Erwin Chermerinsky, a frequent Reno visitor, wrote last week, “In the United States, dangerousness should never be determined by race, ethnicity, national origin or country of residence.” Within the same month, the same court found that in Masterpiece Cakeshop, it would consider as evidence the public statements revealing religious bias of members of the Colorado Civil Rights Commission and, in Hawaii, it would not consider as evidence the public statements revealing religious bias of Donald Trump.
Nice work. By cherry picking the facts it would consider, the court reached the decision it wanted in both cases. We have traded race hate for religious hate.