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Did Trump v. Hawaii Opinion Overturn Korematsu? Nope.

By George Khoury, Esq. | Last updated on

In what seems to be one of those times where the High Court majority would have been better off not saying anything at all, Justice Roberts writing for the majority in Trump v. Hawaii, stated: "Korematsu has nothing to do with this case."

Naturally, given the controversial subject matter of the travel ban case, that statement was not likely to go un-responded to in the media and by legal scholars. And though the mention of Korematsu was borne out of the dissent's criticism of the majority's opinion, as many pundits (and the dissent) point out, Justice Roberts' statements on Korematsu belied conventional logic.

A Majority Dissembling

Supreme Court scholar Harold Hongju Koh is rather critical of Justice Roberts' majority opinion. Writing for SCOTUSblog, he opens by stating:

Some Supreme Court statements can only be understood as dissembling or self-deception. The most recent, startling example is Chief Justice John Roberts' pronouncement in his 5-4 majority opinion in Trump v. Hawaii that "Korematsu has nothing to do with this case."

He quickly explains, as the dissent did, that President Trump has made statements that make it crystal clear that the travel ban cannot be separated from the dogmatic animus he has expressed toward Muslim individuals. In Koh's analysis, he quotes Justice Sotomayor's dissent, quoting President Trump from the campaign trail approving Roosevelt's internment of Japanese Americans, and when President Trump explicitly stated that "Islam hates us ... And we can't allow people coming into this country who have this hatred of the United States."

Don't Believe the Hype

While the majority opinion explicitly states: "Korematsu was gravely wrong the day it was decided." Justice Roberts' logic, as Justice Sotomayor painstakingly points out in dissent, follows the same logic that allowed Korematsu to be decidedly so gravely wrong. And while some media reports are claiming that the majority "overturned" Korematsu, those reports are flat out wrong and misrepresenting what the Court says.

Roberts actually said: [Korematsu] "has been overruled in the court of history." And in case it needed to be clarified, that's not a real thing and Korematsu still hasn't actually been overruled.

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