Exchange in Trump v. Hawaii between the Chief
Justice and Justice Sotomayor about Korematsu v. United States
The Chief Justice wrote:
Finally, the dissent invokes Korematsu
v. United States, 323 U. S. 214 (1944). Whatever rhetorical
advantage the dissent may see in doing so, Korematsu has nothing
to do with this case. The 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. But it is wholly inapt to liken that
morally repugnant order to a facially neutral policy denying
certain foreign nationals the privilege of admission. The entry
suspension is an act that is well within executive authority and
could have been taken by any other President—the only question
is evaluating the actions of this particular President in
promulgating an otherwise valid Proclamation.
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.” 323 U. S.,
at 248 (Jackson, J., dissenting).
Justice Sotomayor wrote:
Today’s holding is all the more
troubling given the stark parallels between the reasoning of
this case and that of Korematsu v. United States, 323 U. S. 214
(1944). In Korematsu, the Court gave “a pass [to] an odious,
gravely injurious racial classification” authorized by an
executive order. As here, the Government invoked an ill-defined
national security threat to justify an exclusionary policy of
sweeping proportion. As here, the exclusion order was rooted in
dangerous stereotypes about a particular group’s supposed
inability to assimilate and desire to harm the United States. As
here, the Government was unwilling to reveal its own
intelligence agencies’ views of the alleged security concerns to
the very citizens it purported to protect. And as here, there
was strong evidence that impermissible hostility and animus
motivated the Government’s policy.
Although a majority of the Court in Korematsu was
willing to uphold the Government’s actions based on a barren
invocation of national security, dissenting Justices warned of
that decision’s harm to our constitutional fabric. Justice
Murphy recognized that there is a need for great deference to
the Executive Branch in the context of national security, but
cautioned that “it is essential that there be definite limits to
[the government’s] discretion,” as “[i]ndividuals must not be
left impoverished of their constitutional rights on a plea of
military necessity that has neither substance nor support.”
Justice Jackson lamented that the Court’s decision upholding the
Government’s policy would prove to be “a far more subtle blow to
liberty than the promulgation of the order itself,” for although
the executive order was not likely to be long lasting, the
Court’s willingness to tolerate it would endure.
In the intervening years since Korematsu, our
Nation has done much to leave its sordid legacy behind. See,
e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et
seq. (setting forth remedies to individuals affected by the
executive order at issue in Korematsu); Non-Detention Act of
1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or
detention by the United States of any citizen absent an Act of
Congress). Today, the Court takes the important step of finally
overruling Korematsu, denouncing it as “gravely wrong the day it
was decided.” This formal repudiation of a shameful precedent is
laudable and long overdue. But it does not make the majority’s
decision here acceptable or right. 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.
Our Constitution demands, and our country deserves, a Judiciary
willing to hold the coordinate branches to account when they
defy our most sacred legal commitments. Because the Court’s
decision today has failed in that respect, with profound regret,
I dissent.