In upholding President Trump\u2019s travel ban, the Supreme Court also overruled Korematsu v. United States. But critics said the move was more symbolic than substantive.<\/b>
\nWASHINGTON \u2014 In the annals of Supreme Court history, a 1944 decision upholding the forcible internment of Japanese-Americans during World War II has long stood out as a stain that is almost universally recognized as a shameful mistake. Yet that notorious precedent, Korematsu v. United States, remained law because no case gave justices a good opportunity to overrule it.
But on Tuesday, when the Supreme Court\u2019s conservative majority upheld President Trump\u2019s ban on travel into the United States by citizens of several predominantly Muslim countries, Chief Justice John G. Roberts Jr. also seized the moment to finally overrule Korematsu.
\u201cThe forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,\u201d he wrote. Citing language used by then-Justice Robert H. Jackson in a dissent to the 1944 ruling, Justice Roberts added: \u201cKorematsu was gravely wrong the day it was decided, has been overruled in the court of history, and \u2014 to be clear \u2014 \u2018has no place in law under the Constitution.\u2019\u201d
In a dissent of the travel ban ruling, Justice Sonia Sotomayor offered tepid applause. While the \u201cformal repudiation of a shameful precedent is laudable and long overdue,\u201d she said, it failed to make the court\u2019s decision to uphold the travel ban acceptable or right. She accused the Justice Department and the court\u2019s majority of adopting troubling parallels between the two cases.
In both cases, she wrote, the court deferred to the Trump administration\u2019s invocation of \u201can ill-defined national security threat to justify an exclusionary policy of sweeping proportion,\u201d relying on stereotypes about a particular group amid \u201cstrong evidence that impermissible hostility and animus motivated the government\u2019s policy.\u201d
The fallacies in Korematsu were echoed in the travel ban ruling, warned Hiroshi Motomura, a University of California, Los Angeles, law professor who has written extensively about immigration. \u201cOverruling Korematsu the way the court did in this case reduces the overruling to symbolism that is so bare that it is deeply troubling, given the parts of the reasoning behind Korematsu that live on in today\u2019s decision: a willingness to paint with a broad brush by nationality, race, or religion by claiming national security grounds,\u201d he said.
He added: \u201cif the majority really wanted to bury Korematsu, they would have struck down the travel ban.\u201d
The Korematsu ruling, an exceedingly rare modern example in which the court explicitly upheld government discrimination against an entire category of people based upon a trait like race or ethnicity, traced back to the early days after Japan attacked Pearl Harbor and the United States entered World War II.
In 1942, President Franklin D. Roosevelt issued an executive order that permitted the military to exclude \u201cany or all persons\u201d from militarily sensitive areas to prevent espionage and sabotage, and to house them in internment camps. The military used that power to order all people of Japanese ancestry, including American citizens, removed from the West Coast.
Fred Korematsu, an American citizen living on the West Coast, refused to leave and was convicted of disobeying a military order. With help from the American Civil Liberties Union, he appealed the verdict to the Supreme Court. But the court voted, 6-3, to uphold the internment policy as a justified national-security measure amid the wartime emergency.
Years later, as World War II receded and the civil-rights movement unfolded, that policy \u2014 and the Supreme Court ruling upholding it \u2014 became widely seen as wrong. In 1982, a congressional commission called the policy a \u201cgrave injustice\u201d that stemmed from \u201crace prejudice, war hysteria, and a failure of political leadership.\u201d In a concurrence, the government said \u201cthe decision in Korematsu lies overruled in the court of history.\u201d
In 1988, Congress passed a law, signed by President Ronald Reagan, providing $20,000 in reparations to each surviving detainee. A dozen years later, Supreme Court Justice Antonin Scalia invoked Korematsu as one of the most notorious mistakes of the court, alongside the Dred Scott decision, the pre-Civil War case denying freedom and citizenship to black slaves brought into free states.
A district court judge vacated Mr. Korematsu\u2019s conviction in 1984, citing in part the discovery that the Roosevelt-era Justice Department had misled the judiciary about the need for the policy, including by citing claims that Japanese-Americans were signaling offshore submarines that the executive branch had already decided were probably not true.
But because the government did not try again to detain entire categories of people in a protected class like race or religion, no case presented a good vehicle for the Supreme Court to overturn the precedent.
The travel ban case, however, brought Korematsu back to the forefront. It traced back to Mr. Trump\u2019s campaign proposal in 2015 to categorically bar Muslims from entering the United States. At the time, Mr. Trump cited with approval Roosevelt\u2019s actions, including wartime restrictions placed on Americans of Japanese, German and Italian ancestry, and said he was not going that far.
\u201cTake a look at what F. D. R. did many years ago,\u201d Mr. Trump said at the time. \u201cHe did the same thing.\u201d
Over time, Mr. Trump\u2019s call for a complete ban on Muslims entering the United States evolved into a ban on entry by nationals from a list of troubled countries, most of which were Muslim-majority. Under the law, the president has the authority to decide to bar groups of foreigners for national-security reasons.
The dispute before the Supreme Court was whether to block the government from implementing a version of the ban Mr. Trump issued in September. Even though that directive was neutral about religion, the history and context, like Mr. Trump\u2019s political rhetoric, suggested it was tainted by unconstitutional religious discrimination.
As the case unfolded, children of Japanese-Americans held in the detention camps and several public interest groups filed two supporting briefs urging the Supreme Court to see Mr. Trump\u2019s latest travel ban as essentially a new version of Roosevelt\u2019s order: demanding that the courts defer to the president\u2019s claimed national-security judgments when he is, at least in effect, singling out an entire category of people based on a discriminatory animus.
But in his majority opinion, Justice Roberts argued that Roosevelt\u2019s act had \u201cnothing to do\u201d with the travel ban case. The \u201cmorally repugnant order\u201d that forced Japanese-American citizens from their West Coast homes and into detention camps \u201csolely and explicitly on the basis of race\u201d was different from \u201ca facially neutral policy denying certain foreign nationals the privilege of admission\u201d into the country, he wrote.
\u201cThe entry suspension is an act that is well within executive authority and could have been taken by any other president \u2014 the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation,\u201d he wrote.
Justice Sotomayor, however, suggested that Justice Roberts\u2019 majority decision in Trump v. Hawaii may go down in Supreme Court history as a second coming of Korematsu.
\u201cBy blindly accepting the government\u2019s 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 \u2018gravely wrong\u2019 decision with another,\u201d she wrote.<\/p>\n

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