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After Calls for Muslim Registry, SCOTUS's Worst Decision Returns

By Casey C. Sullivan, Esq. | Last updated on

Presidential politicking has hit new lows following the recent ISIS attacks on Paris. Last Thursday, GOP front-runner Donald Trump told reporters that the U.S. should implement a database for tracking Muslims. The comments followed Ben Carson's earlier statements that Muslims should not be president, and both candidates' brief insistence that they saw American Muslims celebrating on 9/11. (Both have stepped back from their comments.) Others have called for Syrian refugees to be "rounded up" and deported.

But while many commentators compared the candidates' Islamophobia to fascist Germany, we recall a very different World War II tragedy: Korematsu, one of the worst Supreme Court decisions ever and still good law.

Korematsu: An Uncorrected Disaster

There have been plenty of failures in the Supreme Court's history, especially when it comes to the civil rights of minorities. But while Dred Scott was corrected by the Fourteenth Amendment and Brown v. Board undid Plessy v. Ferguson, Korematsu is a dark precedent that has never been officially renounced. In that 1944 case, the Supreme Court upheld the internment of Japanese Americans during World War II, arguing that the need to protect against espionage outweighed the rights of individual American citizens.

The ruling put a constitutional stamp of approval on a tragedy which saw up to 120,000 people of Japanese ancestry on the Pacific coast interned for four years -- on the basis of race alone. In a particularly cruel twist, Korematsu was also the first Supreme Court case to apply the strict scrutiny standard to government racial discrimination.

In 1982, a congressional commission decried the "race prejudice, war hysteria and a failure of political leadership" that gave rise to internment, writing that "the decision in Korematsu lies overruled in the court of history." But not in the courts of law.

Widely Reviled by Supreme Court Justices

When Korematsu does surface these days, it's largely to be condemned. Justice Ruth Bader Ginsburg has written that "a Korematsu-type classification will never survive strict scrutiny." In Justice Breyer's 2010 book, Making Our Democracy Work, he described the decision as being "so thoroughly discredited that it is hard to conceive of any future court referring to it favorably or relying on it."

But not all Justices are so optimistic about Korematsu's future. Last year, in a talk before law students at the University of Hawaii, Justice Scalia compared Korematsu to Dred Scott. It was wrong, he explained, "but it could happen again in war time."

When listening to current political debates, we're not the only ones who are reminded of Korematsu. The Atlantic's Matt Ford recently surveyed the ruling's role in the Supreme Court "anti-canon," finding Korematsu to be "a reminder that, in times of crisis, there will always be an unpopular minority to fear and opportunistic demagogues to demonize them."

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