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!).
Wow - so many great connections here. A few thoughts:
1- One reason the challengers didn’t frame Trump v. Hawaii as an Equal Protection case is that equal protection arguments almost always collapse in the immigration context because of the “plenary power” doctrine.
2-but if the Arlington Heights framework was applicable, you’re right that there was ample circumstantial evidence of discriminatory motives.
The Court refused to apply that kind of searching inquiry precisely because it was immigration/national security, which is why the analogy to Arlington Heights works as critique but not as doctrine.
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.
I haven’t read Noem, but your point reminds me of Sotomayor’s dissent in Trump v. Hawaii. Even though the majority went out of its way to repudiate Korematsu, she said they were basically repeating the same mistake, taking vague national security claims at face value. Like Murphy, she was pushing the Court to test the government’s justifications.
Yes. I believe the focus on radicalization through legal and policy frameworks provides insight into the fact that our legal system is not a neutral arbiter. Instead, the courts and the law act as tools for the state to manage the contradictions inherent in our economy. In Korematsu, the state's need to consolidate power for a global conflict essential to capital expansion led it to sacrifice constitutional protections for a unfairly racialized group. And Trump v. Hawaii used fear of a racialized "other" to justify interventionist policy that advanced US interests in the middle east, an area critical to global capital flows. In both cases, the legal system was used to manage contradictions between a stated commitment to individual rights and the requirements of the capitalist system.
Constitutional principles that are supposed to protect our rights aren't absolute; they're flexible and can be made to justify policies that support economic and political power.
This is a really interesting piece, and I agree with your connection between Korematsu to the post-9/11 treatment of Muslim and Arab communities. What stands out to me is how both contexts highlight the judiciary’s tendency to defer in moments of perceived crisis. In Korematsu, the Court justified its deference by invoking “military necessity.” In Trump v. Hawaii, it leaned on the executive’s broad immigration authority and the supposed neutrality of the policy’s text. In both cases, the Court effectively insulated executive action from meaningful scrutiny, even when there was strong evidence of discriminatory intent.
What scares me is that the “facial neutrality” frame allows courts to avoid grappling with racialization as a process. As you note, race isn’t just something the state observes, but it’s something the state constructs through policy. When the Court refuses to engage with how identity categories are mobilized as proxies for danger, it reinforces the structures of suspicion that produced Korematsu in the first place.
This could simply be my own background as a veteran informing a biased opinion, but I find myself thinking that when evaluating the decision of Korematsu and the treatment of Japanese Americans during World War II, context matters.
The relocation order that Korematsu refused to comply with had been implemented on February 19th, 1942, which was about two months after the Japanese navy had attacked Pearl Harbor on December 7th, 1941. This attack resulted in approximately 2.4 thousand American deaths, most of which were military personnel, but some of those deaths were civilian; prior to this attack, there had been virtually no American civilian casualties. It is no secret that during times of war military deaths are to be expected, but the attack on Pearl Harbor changed things; it changed how safe America felt behind its own boarders.
The significance of this event and the related timeline is that the Pearl Harbor attack was the canon event that brought the United States out of the sidelines of World War II and into the fray. Prior to this attack, the United States adopted an isolationist foreign policy; if it were not for this attack the nation may have never entered the war.
My overall point is this; it is far easier to look back retrospectively to evaluate the decisions made during war than it is to make those decisions in the heat of it. I think that special deference should be given to military necessity in times of national emergency, because the military is who our 'experts' are when it comes to national defense.
Thanks for this contribution, Al. I’d love for you to talk a bit more about this in class on Monday, as I’ll start with another look at Korematsu. One question I want you to grapple with: why did Murphy and Jackson, in their Korematsu dissents, see things differently than the majority? Their view wasn’t “retrospective” but in the moment.
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!).
Wow - so many great connections here. A few thoughts:
1- One reason the challengers didn’t frame Trump v. Hawaii as an Equal Protection case is that equal protection arguments almost always collapse in the immigration context because of the “plenary power” doctrine.
2-but if the Arlington Heights framework was applicable, you’re right that there was ample circumstantial evidence of discriminatory motives.
The Court refused to apply that kind of searching inquiry precisely because it was immigration/national security, which is why the analogy to Arlington Heights works as critique but not as doctrine.
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.
I haven’t read Noem, but your point reminds me of Sotomayor’s dissent in Trump v. Hawaii. Even though the majority went out of its way to repudiate Korematsu, she said they were basically repeating the same mistake, taking vague national security claims at face value. Like Murphy, she was pushing the Court to test the government’s justifications.
Yes. I believe the focus on radicalization through legal and policy frameworks provides insight into the fact that our legal system is not a neutral arbiter. Instead, the courts and the law act as tools for the state to manage the contradictions inherent in our economy. In Korematsu, the state's need to consolidate power for a global conflict essential to capital expansion led it to sacrifice constitutional protections for a unfairly racialized group. And Trump v. Hawaii used fear of a racialized "other" to justify interventionist policy that advanced US interests in the middle east, an area critical to global capital flows. In both cases, the legal system was used to manage contradictions between a stated commitment to individual rights and the requirements of the capitalist system.
Constitutional principles that are supposed to protect our rights aren't absolute; they're flexible and can be made to justify policies that support economic and political power.
This is a really interesting piece, and I agree with your connection between Korematsu to the post-9/11 treatment of Muslim and Arab communities. What stands out to me is how both contexts highlight the judiciary’s tendency to defer in moments of perceived crisis. In Korematsu, the Court justified its deference by invoking “military necessity.” In Trump v. Hawaii, it leaned on the executive’s broad immigration authority and the supposed neutrality of the policy’s text. In both cases, the Court effectively insulated executive action from meaningful scrutiny, even when there was strong evidence of discriminatory intent.
What scares me is that the “facial neutrality” frame allows courts to avoid grappling with racialization as a process. As you note, race isn’t just something the state observes, but it’s something the state constructs through policy. When the Court refuses to engage with how identity categories are mobilized as proxies for danger, it reinforces the structures of suspicion that produced Korematsu in the first place.
This could simply be my own background as a veteran informing a biased opinion, but I find myself thinking that when evaluating the decision of Korematsu and the treatment of Japanese Americans during World War II, context matters.
The relocation order that Korematsu refused to comply with had been implemented on February 19th, 1942, which was about two months after the Japanese navy had attacked Pearl Harbor on December 7th, 1941. This attack resulted in approximately 2.4 thousand American deaths, most of which were military personnel, but some of those deaths were civilian; prior to this attack, there had been virtually no American civilian casualties. It is no secret that during times of war military deaths are to be expected, but the attack on Pearl Harbor changed things; it changed how safe America felt behind its own boarders.
The significance of this event and the related timeline is that the Pearl Harbor attack was the canon event that brought the United States out of the sidelines of World War II and into the fray. Prior to this attack, the United States adopted an isolationist foreign policy; if it were not for this attack the nation may have never entered the war.
My overall point is this; it is far easier to look back retrospectively to evaluate the decisions made during war than it is to make those decisions in the heat of it. I think that special deference should be given to military necessity in times of national emergency, because the military is who our 'experts' are when it comes to national defense.
Thanks for this contribution, Al. I’d love for you to talk a bit more about this in class on Monday, as I’ll start with another look at Korematsu. One question I want you to grapple with: why did Murphy and Jackson, in their Korematsu dissents, see things differently than the majority? Their view wasn’t “retrospective” but in the moment.