Condemning Yesterday’s Racism To Justify Today’s

Leah Litman has done the best writing on Korematsu II I’ve seen so far:

Part of what made the Court’s denunciation of Korematsu so bittersweet is that the majority appeared only to deign to denounce the decision in response to the powerful dissent by Justice Sonia Sotomayor that invoked the many parallels between the entry ban and the internment order in Korematsu.

As Justice Sotomayor pointed out, in both cases “the Government invoked an ill-defined national security threat to justify an exclusionary policy,” “the exclusion order was rooted in dangerous stereotypes,” and “the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect.”

In response, Chief Justice John Roberts wrote that “the dissent’s reference to Korematsu…affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided.”

But the Court’s “overruling” of Korematsu—if you can even call it that—was even worse than that dismissive opprobrium. It was also a telling example of how the Court regularly reinforces discrimination while purporting to reject it.

Professor Reva Siegel coined the phrase “preservation-through-transformation” to describe how the Court goes out of its way to reject certain forms of discrimination while legitimating other forms of discrimination, and reinforcing them in the process. The Court will often reject an “older” form of discrimination while distinguishing “newer” forms of discrimination that are at work in the present day. A natural human tendency is to rationalize the way things are, and that can involve insisting that we, as a present-day people, are better than our predecessors. The end result of this process is, as Siegel observed, to reinforce status-based hierarchies by shifting their forms.

Definitely read the whole thing; it’s a very rich argument, and the Siegel paper is brilliant.

Anyway, Roberts’s protesting-too-much “overruling” of Korematsu I is essentially the legal equivalent of the role Teddy Bear Martin Luther King, the civil rights leader whose career consisted of one speech with one line in it, plays in Republican discourse — invoking support for a past civil rights leader to launder their contemporary undermining of civil rights. Brown now plays a similar role; Roberts’s use of Brown in Parents Involved was just as smarmy and disingenuous as his overruling-in-form-reaffirming-in-practice of Korematsu in Trump, something that deserves its own post. And of course Korematsu II should be viewed as a companion case to the Court’s further evisceration of the Voting Rights Act through use of the same rules that sustained Jim Crow by making racial discrimination essentially impossible to prove.