John Ip (University of Auckland – Faculty of Law) has posted The Travel Ban, Judicial Deference, and the Legacy of Korematsu ((2020) 63 Howard Law Journal 153) on SSRN. Here is the abstract:
In Trump v. Hawaii, a 5-4 majority of the Supreme Court, adopting a highly deferential posture, upheld the third version of President Trump’s travel ban. Justice Sotomayor, in dissent, likened the majority opinion to the anti-canonical decision of Korematsu v. United States. This met with an indignant denial from Chief Justice Roberts, who also took the opportunity to overrule Korematsu. This article argues that this disagreement between Chief Justice Roberts and Justice Sotomayor reflects fundamentally different conceptions of the decision. For Chief Justice Roberts, Korematsu was wrong for endorsing the race-based internment of citizens; for Justice Sotomayor, Korematsu was wrong for endorsing a sweeping and discriminatory policy targeting an outgroup on the basis of a vague claim of national security. The article further argues that, in attempting to distance his opinion from Korematsu, Chief Justice Roberts had to construct an artificial, ahistorical version of the case. Not only does this approach mean that only this narrow version of Korematsu has been overruled, but it also obscures the continuities between the two cases, such as the influence of nativism on what is ostensibly national security policy, and the crucial role played by judicial deference. What is more, Chief Justice Roberts’ approach would not have changed the outcome of Korematsu, and at the same time it contradicts the rationale for deference on which the majority opinion purports to rely. Chief Justice Roberts’ attempt to deny the relevance of Korematsu to the travel ban case is thus ultimately unconvincing.