Today’s Supreme Court ruling in the Muslim ban case will be remembered in history as the Roberts court’s Korematsu.
Three times in American history, the Supreme Court has been asked to speak to a law, neutral on its face, yet rooted in a popular hatred or intolerance of minorities. Three times, it has chosen to ignore the real reasons for the law. Three times, it has instead given a free pass to laws and policies predicated on discriminatory judgments that our Constitution supposedly bars.
The first was Plessy v. Ferguson. In 1896, the Plessy Court upheld Homer Plessy’s conviction under Louisiana’s law mandating “equal but separate” railroad carriages. The central plank of the Court’s argument was simple: If Homer Plessy experienced a “badge of inferiority,” it was “not by reason of anything found in the act,” but “solely” because he chose to view the law that way.
The second was the aforementioned Korematsu v. United States — the Japanese internment camp case. Famously, the case upheld in 1944 an executive order by President Franklin Roosevelt, authorizing “military areas … from which any or all persons may be excluded.” The Court reviewed “evidence” that Congress had gathered about the Japanese government’s “dissemination of propaganda and … maintenance of … influence” among Japanese Americans.
It carefully framed its Korematsu opinion as focused on a policy of “exclusion,” ignoring the network of civilian assembly centers and “relocation” camps — as the internment camps were euphemistically known — that ultimately held between 110,000 and 120,000 people.
The Court expressly refused to look beyond these proffered justifications — justifications that in the fullness of time were revealed as false. Rather, it rejected the discrimination issue because it “merely confuses the issue.” Emphasizing that “we are at war” and that “time was short,” the Court deferred to the decision of “properly constituted military authorities.”
Even at the time, the problem with this logic was apparent: As Justice Robert Jackson cautioned, the Court’s embrace of the deference meant that judges would “never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”
The third case, of course, is Hawaii v. Trump. In upholding the president’s travel ban, both Chief Justice John Roberts’s bare majority opinion and Justice Anthony Kennedy’s concurring opinion go out of their way to reject the suggestion that religious animus motivated the ban, and they distance the Court from President Donald Trump’s many hateful and discriminatory statements about Muslims.
Those on the side of religious discrimination will be judged harshly when the history of this era is written, with the next few months determining what the future of America will look like. Unfortunately, we now live in a United States of divided languages. A country of separate beliefs. A people who view humanity differently. Where my heart aches, my neighbor’s heart sings.
Over 2,000 kids are held by HHS and have not yet been reunited with their families, down just six from last week. The president’s religious ban has been upheld by the courts. Voting discrimination is legal again or severely defended in several states.
The importance of the opportunity for those of different nations to build under the shared colors of our land has been lessened by this administration. We turn away those seeking safety, freedom, and asylum. We judge those who are looking for open hearts.
We can still have hope by taking the long view of history, knowing this will not be forever. But for those whose bodies and beliefs do not resemble those of the majority, forever is a long time coming. It is our responsibility that the time it takes for justice to prevail is lessened through our work. For while the promises of this nation may not be fully kept, the words on the Statue of Liberty still echo truth in my heart:
“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
It is important that we fight, and vote, and protest, and lead, so that the promise of a shared humanity where all can love free is upheld for the future generations looking to find a place that they can call home.