10:54, May 26 420 0 theguardian.com

2017-05-26 10:54:03
Trump's travel ban is a test for the US supreme court – and the country

The US Supreme Court will soon decide whether to repeat one of the most shameful moments in American history. On Thursday, 10 judges of the US Court of Appeals for the Fourth Circuit voted to uphold a lower court’s order blocking President Trump’s Executive Order no 13780, which would have banned people from several Muslim-majority countries from entering the United States.

The court correctly concluded that the order was inspired by animus against people of the Muslim faith, in violation of the Establishment Clause. In a powerful concurring opinion, Judge James A Wynn expressed hope that we have “matured from the lessons learned by past experiences,” referring to now-condemned Supreme Court decisions in Dredd Scott—which endorsed the “separate but equal” treatment of African Americans—and Korematsu v United States—which upheld Executive Proclamations requiring the internment of Japanese Americans during World War II.

The government will almost certainly seek review of the Fourth Circuit’s decision in the Supreme Court, which will almost certainly take the case.

One of the decisions referred to by Judge Wynn, Korematsu, has become a focal point of the legal challenge to Trump’s order. Like Trump’s order, Korematsu arose from an expressed desire to protect the nation by singling out a group, there based on race—one could not easily tell the difference between the good Japanese Americans and the “disloyal” ones, so they must all be detained.

The federal government, as it has in the case of Trump’s order, argued that the power to detain in times of war was within the President’s broad national security powers.

In what is now viewed as one of the worst Supreme Court decisions in history, Justice Hugo Black upheld the discriminatory detention, reasoning implausibly that it was motivated by security, not discrimination.

In the legal community, the Korematsu decision has become known as “anti-canon”—an exemplar of reviled decision-making. Yet it is surprisingly difficult to come up with a moral distinction between Korematsu and Trump’s order.

Several civil rights organizations—including the MacArthur Justice Center and The Fred T Korematsu Center (dedicated to the man who challenged the Japanese American detention program during World War II)—have filed legal briefs urging that the government is attempting to repeat of history.

In both federal courts of appeal that heard oral argument earlier this month, judges pointedly asked Acting Solicitor General Jeffrey B. Wall how this case is any different from Korematsu. The problem – one that should be concerning to all Americans – is that neither the federal government nor the judges who have defended Trump’s order have offered an acceptable answer.

The three judges who dissented in yesterday’s decision were notably silent about this invidious elephant in the room. Moreover, the obvious low point in Acting General Wall’s argument in defense of Trump’s order has been his inability to draw a meaningful distinction from Korematsu. He answered confidently that he would have never defended the ban in Korematsu—as he has to—but when pressed, revealed that he had not read the orders at issue in Korematsu and was unable to provide a clear distinction.

To be sure, there are distinctions. For instance, the order in Korematsu discriminated against people who were already in the country, while Trump’s order would discriminate only at the time people attempt to enter. Also, one of the orders in Korematsu actually said the words “Japanese-American,” while Trump’s order avoids the word “Muslim.” But these distinctions have nothing to do with why we are ashamed of Korematsu. They are new examples of the formalistic distinctions that gave the Justices in Korematsu the comfort to do wrong.

The late Justice Antonin Scalia believed that Korematsu was wrongly decided, but warned: “You are kidding yourself if you think the same thing will not happen again.” His former colleagues, along with the Justice who replaced him, will soon decide whether to create the historical blemish of our time.