In Tuesday’s majority opinion upholding President Donald Trump’s travel ban, the Supreme Court also overturned a long-criticized decision that had upheld the constitutionality of Japanese-American internment during World War II.
Justice Sonia Sotomayor had mentioned the 1944 case, Korematsu v. United States, in her dissent, arguing that the rationale behind the majority decision had “stark parallels” to Korematsu; in both cases, she argued, the government “invoked an ill-defined natiounal security threat to justify an exclusionary policy of sweeping proportion.”
Writing for the majority, Chief Justice John Roberts argued that the case was not relevant to the travel ban, but went ahead and wrote that it is now overturned.
“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, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,'” he wrote.
Korematsu arose out of President Franklin Delano Roosevelt’s 1942 executive order mandating that Japanese Americans leave their homes and jobs for internment camps. Over 117,000 Japanese were ultimately removed from their homes. Civil rights activist Fred Korematsu, who died in 2005, challenged his interment, but the Supreme Court ruled that his detention was a military necessity.
Parallels between Japanese interment and the Muslim ban had been highlighted before Tuesday’s ruling. Fred Korematsu’s daughter Karen, who now runs a civil liberties institute in his name, had filed a friend of the court briefing against the travel ban, and argued in a Washington Post op-ed last December that the policy “just as unfair” as Japanese internment.
“Korematsu is a reminder that while we may sometimes be afraid during times of crisis, fear should not prevail over our fundamental freedoms.,” she wrote at the time.
Both liberal and conservative justices have criticized the Korematsu decision in the past, but it was never formally overturned.
In 1995, liberal Justice Ginsburg wrote in a dissent that “a Korematsu-type classification … will never again survive scrutiny,” conservative Justice Antonin Scalia said in a speech that it was wrong but warned that it could happen again. “In times of war, the laws fall silent,” he said.
In the majority opinion Tuesday, Roberts quoted from Supreme Court Justice Robert Jackson’s famous dissent in Korematsu.
Jackson, who later served as a chief prosecutor for the U.S. in the Nuremberg trials of Nazi war criminals, argued that the majority decision upholding internment would set a bad precedent.
He noted that a military order would eventually lapse, but a judicial opinion would validate racial discrimination by creating new principles to justify it.
“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” he wrote.
After a terrorist attack in San Bernardino, Calif., during the 2016 campaign, Trump called for a ban on Muslims entering the United States, comparing it to Roosevelt’s executive order authorizing internment. In a later interview with TIME, he would not unequivocally repudiate the internment camps.
“I certainly hate the concept of it. But I would have had to be there at the time to give you a proper answer,” he said.
Recently, Trump Administration attorneys favorably invoked Hirabayashi v. United States in a legal briefing on a case involving Guantanamo Bay detainees, a World War II-era decision which was a basis for Korematsu.
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