In 1944, the U.S. Supreme Court upheld the forced relocation of over 120,000 Japanese Americans in Korematsu v. United States. Most were citizens. None were charged with any crime. The justification? Military necessity. Faced with wartime fear, the Court deferred to the executive’s judgment.
Decades later, the ruling was widely condemned. And in 2018, the Court explicitly stated that Korematsu was wrong the day it was decided. But the broader concern it raises—the use of race, religion, or ancestry as a proxy for danger in national security contexts—has not gone away.
In the years after 9/11, Muslim, Arab, and South Asian communities faced sweeping surveillance and profiling. Airport detentions. Visa delays. Secret watchlists. Registration programs that targeted men from predominantly Muslim countries. Many of these policies were not framed in explicitly religious terms, but their effects were undeniably racialized.
As I argued in my book When Islam Is Not a Religion, Muslims in America have often been treated not just as adherents of a faith, but as a racialized group, as if their religious identity were something fixed, foreign, and inherently suspect. This dynamic didn’t emerge out of nowhere. It reflects a longstanding pattern in American law and culture, where racial meaning attaches to national origin, names, clothing, and religious practice.
What Korematsu Teaches Us About Racialization
Korematsu is frequently cited as a cautionary tale about racial discrimination. But it also reveals how race is constructed by the state. Japanese Americans were not interned because of individual conduct. They were confined because of ancestry and presumed disloyalty. Their race was not just seen, it was made meaningful through policy.
The same can be said of the racialized identity of Muslims post-9/11. The phrase flying while Muslim became shorthand for the anxiety and humiliation many travelers experienced, not because of what they did, but because of how they looked or what their names suggested. As with driving while Black, the burden of suspicion falls unevenly.
In legal terms, these policies may be framed as facially neutral. But the lived experience and the disparate impact tell another story.
What Courts Are (and Aren’t) Willing to See
One of the most complex cases to address these issues in recent years was Trump v. Hawaii, which involved a presidential proclamation restricting entry into the U.S. from several countries. Critics pointed to statements made by the president and his advisors that appeared to express anti-Muslim animus. Supporters argued the policy was about national security, not religion.
In reviewing the case, the Court acknowledged the history of Korematsu and stated that its reasoning no longer held. Yet the policy in Trump v. Hawaii was upheld. The Court emphasized the facial neutrality of the proclamation and the broad discretion the executive branch holds in immigration matters.
The question is not whether the Court made the right call. It’s what we learn from the record itself.
The evidence presented—including campaign statements, public remarks, and early versions of the policy—reflected a narrative of fear linked to Muslim identity. While the final version of the policy applied to a broader set of countries, the case sparked a renewed conversation about when national security concerns can become a cover for religious or racial exclusion.
The Ongoing Challenge
Korematsu reminds us of what’s at stake when courts defer too easily to generalized fears. It shows us how ancestry or belief can become the basis for sweeping restrictions. And it warns against accepting “neutral” justifications without close scrutiny of how those justifications operate in practice.
Today, the challenge is to understand how racialization continues—often subtly, often legally—under the banner of security. Whether through airport screenings, visa delays, or law enforcement profiling, certain bodies are still treated as threats before they are treated as citizens.
And that is where the deeper danger lies, not just in the policies we enact, but in the assumptions we fail to question.
The more I read these cases, as well as the cases we read in immigration law, the more I am pushed to the conclusion that the Supreme Court’s almost absolute deference to the political branches of the Federal Government kneecaps the judiciary and, consequently, undermines our Constitution’s system of checks and balances. I do not think this type of deference has a place in our system outside of cases involving purely political questions. The facial neutrality of Trump’s Proclamation at issue in Trump v. Hawaii should not have been a barrier to more scrutinous review by the Court.
Following Chief Justice Roberts’ opinion, what is stopping a presidential administration or Congress from issuing orders or enacting laws that reach as far as the executive order at issue in Korematsu—the very same order Roberts insists was “gravely wrong the day it was decided”? The President or Congress need only ensure the language of their orders or legislation are facially neutral and, following Trump v. Hawaii, they will enjoy judicial deference that is, for all intents and purposes, absolute. Further, Executive Order 9066 was also facially neutral, but clearly motivated by discrimination and enforced in a targeted, discriminatory way. The differences between that order and Trump’s Proclamation exist, but are thin, and I do not think Roberts can reasonably say that Korematsu was wrongly decided in one breath, presumably because of the motive behind Executive Order 9066 and/or the way in which it was applied, then in the next say that Trump’s Proclamation is constitutional without looking any deeper into the reason it was issued and/or the effect it had.
After reading these cases, I am reminded of Justice Black’s opinion in Palmer v. Thompson, where he stated: “If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.” Here, if a facially discriminatory order or law is struck down in the immigration context, “it would presumably be valid as soon as the [President or the] legislature . . . [issued a new order or] repassed [the order or law] for different reasons.” (That’s strikingly similar to what happened, as this Proclamation followed a more questionable one from 2017.) But the difference is that the Proclamation's effect clearly targeted specific groups—its effect was not felt equally, unlike (if we believe Black) the lack of access of public pools in Palmer v. Thompson. While (I think?) the Arlington Heights framework doesn’t apply given that Trump v. Hawaii was an Establishment Clause case and not an Equal Protection case, an analysis of Trump’s Proclamation under that framework is pretty telling about the motives behind the Proclamation.
I definitely may be missing something critical here that might change my mind about Roberts’ opinion and the consequences of this case. But it appears to me that the Court’s overturning of Korematsu was a rejection in name only, and amounts to the delivery of a blank check to the executive and legislative branches on matters in this area of the law. I would not even go so far as Justice Sotomayor to label the majority’s overturning of that case “laudable.” I do not doubt that if Roberts was on the Court in 1944, he would have upheld Executive Order 9066 if its language was facially neutral (which it was!).
Going forward I believe Justice Murphy’s dissent in Korematsu is especially important in the modern day as he makes clear that the exclusion order was a guise for blatant racial discrimination with no genuine connection to military danger. His dissent pushes us to see that judicial deference can normalize racial prejudice when courts fail to test the government’s claims for actual evidence.
What troubles me is that a similar danger appears in the recent Supreme Court ruling of Noem v. Vasquez Perdomo (2025). The majority there, much like the Korematsu Court, accepted vague government assertions, though this time around ethnicity, language, and type of work, as proxies for suspicion. Allowing the government to treat them as indicators of unlawful presence flips the Fourth Amendment burden. Instead of requiring the state to articulate reasonable suspicion based on conduct, it forces individuals to “prove” their legality simply because they fit a profile.
Justice Sotomayor’s dissent resonates with Murphy’s in Korematsu where both warn against turning group characteristics into evidence of "disloyalty" or "illegality." Both dissenters see the broader stakes of the precedent of legitimizing suspicion based on ancestry, race, or language. If left unchecked, these rulings don’t just harm those directly targeted; they set up legal frameworks that normalize exclusion and surveillance as acceptable state responses to fear.