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The Supreme Court's Missed Opportunity to Undo the Long Legacy of Its Korematsu Decision

Bad jurisprudence, like history, tends to repeat itself.
The portrait of Fred Korematsu is seen in the National Portrait Gallery on February 2nd, 2012, in Washington, D.C.

The portrait of Fred Korematsu is seen in the National Portrait Gallery on February 2nd, 2012, in Washington, D.C.

The majority of Fred Korematsu's adult life was one of legal chaos. In 1942, the 23-year-old was arrested in San Leandro, California, for defying restrictions established via President Franklin D. Roosevelt's Executive Order 9066, which authorized the internment of Japanese Americans on the West Coast during World War II. For two years, Korematsu battled his conviction for evading internment in court; that battle ended in 1944, when the Supreme Court upheld the constitutionality of internment in Korematsu vs. United States.

Though Korematsu himself was released from a Utah prison camp after the war ended, his conviction wasn't formally overturned until 1984, and his release did little to reverse the Supreme Court's wartime precedent. Even after Korematsu the man earned the Presidential Medal of Freedom in 1998 for his lifelong service to civil liberties, Korematsu the law remains a dark stain on the American legal landscape.

Bad jurisprudence, like history, tends to repeat itself. On February 27th, the Supreme Court ruled that immigrants can be detained indefinitely without bond hearings despite permanent legal status "while [authorities] determine whether those aliens may be lawfully present in the country." The ruling essentially denies immigrants a right to a twice-annual hearing even if they have some legal right to be in the country.

As part of the court's dissent, Justice Stephen Breyer sought to remind his fellow justices of the carceral reality of bond hearing: Not even actual American citizens escape unscathed. "The many thousands of individuals involved in this case are persons who believe they have a right to enter into or remain in the United States, and a sizable number turn out to be right," Breyer said on February 27th, according to USA Today. "The government ... holds them confined in jails or prisons for months, sometimes for years, until the matter can be resolved. And they spend those months or years imprisoned without bail."

"We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have 'certain unalienable rights,' and that among them is the right to 'liberty,'" he added in his decision.

It must be noted, though, that the case in question, Jennings vs. Rodriguez, wasn't a legal gambit by the Trump administration: Jennings was first argued in November of 2016 due to a bad case of post-Scalia deadlock and re-argued in October of 2017, during which time a Department of Justice spokesman framed the decision as one that primarily impacts docket expediency. But it still marks a major boon for the travel restrictions sought by the White House regarding the purported violence embodied by undocumented immigrants—especially as the Supreme Court gears up to tackle constitutional questions formally arising from the security-laden fury of the Trump administration's travel ban in Hawaii vs. Trump.

"The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities," American Civil Liberties Union attorney Ahilan Arulanantham said in a statement. "We look forward to going back to the lower courts to show that these statutes, now interpreted by the Supreme Court to require detention without any hearing, violate the Due Process Clause."

This doesn't bode well for Korematsu. Writing in Politico in May of 2017, Richard Primus suggested that Donald Trump's salvo of immigration executive orders would encourage the Supreme Court to make right the legal blemish of Korematsu in the same way it did by overruling Plessy vs. Ferguson (which dealt with racial segregation for public facilities). "So long as Korematsu is still technically good law, the possibility remains that government officials will invoke it to support acts of racism masquerading as national security measures," Primus wrote. "As Justice Robert Jackson warned in his Korematsu dissent, the case 'lies about like a loaded weapon.'"

Primus believed that Justice Anthony Kennedy would follow the Supreme Court's centuries of juridicial procedure and slap down Korematsu just as past benches did Plessy and Bowers vs. Hardwick (which essentially criminalized homosexuality). But Primus' prediction was overly optimistic. In Jennings, Kennedy simply concurred with Justice Samuel Alito's assertion that "nothing in the statutory text imposes any limit on the length of detention."

This is the Trump presidency, and following any sort of institutional norm is no longer a guarantee. All of this indicates that the one chance the Supreme Court gets to address the rights of immigrants won't just shake out in favor of Trump's alarming travel ban, but leave Korematsu fundamentally intact.