Did you ever think that the Supreme Court would again make a decision as disgraceful as Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II?
Justice Antonin Scalia predicted it would. Korematsu was one of the most disgraceful opinions in the court’s history, he said, but, “You’re kidding yourself if you think the same thing will not happen again.”
And it did. The justices Dec. 4 allowed President Donald Trump’s ban on Muslim immigrants to remain in force until they get around to determining its constitutionality.
Scalia knew that his fellow justices would again allow gross deprivations of liberty, were the government panicked enough. “It’s no justification,” he told law students in Hawaii in 2014, “but it’s the reality.”
More often than not, the court allows justice to be abridged by ill-considered claims of national security. That’s what happened during World War II, when the justices upheld the incarceration of nearly 120,000 Japanese, Japanese-Americans, and Aleutian Island Indians after the sneak attack on Pearl Harbor.
There was no evidence that any of them posed a threat to the nation’s security. None was granted an individual hearing, as German-Americans were. Nor did the internees pose any more threat than the 158,000 persons of Japanese ancestry who were never interned in Hawaii, although Oahu remained our main military base in the Pacific for the rest of the war.
The justices ignored these realities and deferred blindly to the Army’s unsupported claims of “national security.” They did so even though J. Edgar Hoover’s FBI saw no reason for the internment.
Now the Supreme Court is doing the same — deferring to Trump’s equally unsubstantiated fears of Muslim immigrants. As Scalia said, it was disgraceful when the justices did it in 1944. So why are they doing it now? Don’t they ever learn?
The answer is as simple. When people are frightened, they tend to stop thinking, and that is true even of people who should know better. At the very moment the justices should be asking questions, they accept invocations of “national security” as indisputable.
We all know that Trump’s claims of national security are a thin mask for anti-Muslim bigotry, just as President Franklin D. Roosevelt’s claims against Japanese-Americans masked West Coast racism. But, when Trump added North Korea and Venezuela to his list of national security threats, a majority of the justices apparently concluded that his ban must no longer be driven by anti-Muslim bigotry.
I say apparently, because the justices did not issue an opinion. Nor did they acknowledge the human suffering that will transpire in foreign refugee camps and among the refugees’ relatives here until they get around to formally considering the legality of the ban.
Again, this indifference should not surprise anyone. Justices frequently delay hard cases in the hope that they will go away. Like most privileged elites, their comfort comes first. The decision in Korematsu, and the release of the detainees pursuant to a companion case, were delayed until Roosevelt had been safely re-elected. Had they been released earlier, he might not have won re-election.
Similarly, the anti-Muslim ban will remain in force until all excuses for delay have been exhausted, or until Trump is no longer president. Meanwhile, we will all have to suffer the shame of yet another extraordinarily disgraceful opinion by the U.S. Supreme Court.
Christopher Pyle teaches constitutional law at Mount Holyoke College in South Hadley.