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Tuesday, June 26, 2018

(SCOTUS Term) Korematsu and the Court of History

In declaring valid the travel ban, the Chief did not cite or discuss Korematsu. He raised it at the end of the opinion, in response to the dissents' "rhetorical" trick of raising that case. But the Court took 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.'" (quoting Jackson's dissent). Joey Fishkin questions how Korematsu is different than this case or what makes Korematsu wrong and the current decision upholding the restriction right, rejecting the distinction based on facial neutrality. The post is worth a read.

I was struck by the Court's reference to the "court of history" in announcing that Korematsu did not reflect a valid interpretation of equal protection. This language hearkens to New York Times v. Sullivan, which declared that "the attack on the validity" of the Alien and Sedition Acts had "carried the day in the court of history."

Posted by Howard Wasserman on June 26, 2018 at 08:32 PM in 2018 End of Term | Permalink


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