//  6/26/18  //  Commentary

The crux of the Supreme Court’s travel ban decision is the technical question of what standard of review applies to claims of religious and racial discrimination. Its holding was that a challenged policy will survive if it is “plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” In a footnote, the Court seemed to cabin this ruling to “to any constitutional claim concerning the entry of foreign nationals.” Moreover, the majority opinion goes out of its way to distinguish the case from the Korematsu judgment, which it purports to repudiate as “gravely wrong the day it was decided.” 

Based upon a forthcoming analysis of the Court’s work on discriminatory intent, I do not think that the Court’s repudiation of Korematsu is credible. Instead, it is hard to see how the core deference principle at work in today’s decision can be limited to foreign nationals’ entry claims. Rather, in light of other decisions challenging enforcement actions across the immigration and criminal justice fields, today’s opinion is better read as the affirmation of a simple rule: So long as the government asserts some kind of public security justification when it wishes to coerce or confine, a litigant alleging bias must lose. What is new after Trump (and Trump) is simply that such discrimination can be overt and overtly ugly.

To see this, it is useful to go back to the internment policy challenged in Korematsu.  The Japanese internment was based on a series of Public Proclamations by Lieutenant General John L. DeWitt, starting on March 2, 1942, backed by both executive order and ultimately statute. The first DeWitt order regulated people of Japanese, German or Italian ancestry. The internment order, Proclamation No. 4, applied to only those of Japanese ancestry.

The Supreme Court upheld the internment despite this facial racial classification. It did not do so because the Government had met a heightened standard of review.  Rather, the Court said that it “cannot reject as unfounded the judgment of the military authorities and of Congress” and “cannot say that the war-making branches of the Government did not have ground for believing” internment to be justified. In other words, the internment was “plausibly related” to the Government’s stated national security objectives. This logical framework of Korematsu is the logical framework of today’s decision.

As Justice Jackson warned, the Court’s approach in practice meant that judges “can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This is in stark contrast to the more free-ranging inquiry into bias outside the security context—a kind of inquiry nicely illustrated by the Masterpiece Cakeshop case.

How then is Korematsu different from the travel ban case? Why does Chief Justice Roberts think any analogy between those decisions is “wholly inapt”?  I can think of two potential reasons. Neither of them is compelling.

The first is that the internment order there “morally repugnant” and not “facially neutral.”  But this is not plausible.  To begin with, it is hard to see why Korematsu would have been any less morally repugnant had Proclamation No. 4 included Italians and Germans as well as Japanese persons (as indeed earlier orders did).  The Court has repeatedly recognized in both the race and religion contexts that discriminatory actors often do not embed their animus on the face of their decisions. But if the “morally repugnant” quality of a government decision remains even if its verbal formulation is tweaked to eliminate facial discrimination, then the absence of an impermissible classification in the travel ban’s text cannot be what makes it different from Proclamation No. 4.

The second difference is that Korematsu involved citizens, whereas the travel ban case doesn’t.  I suspect this is what Roberts thinks is at work.  But while this might initially sound like a real distinction, I am skeptical. 

For one thing, not all the Justices on the Court today have suggested that citizenship matters to the quality of judicial review in the national security domain. Justice Thomas, for one, has said quite the contrary, and we do not know whether Justices Alito and Gorsuch would follow his lead.  (As an aside, how can Justice Thomas join the travel ban majority given that he has rejected that citizenship limit in the past?  The best reason I can see is the brief, astonishing, and egregious aside in the Thomas opinion that the evidence of bias was “unpersuasive.”  It seems the rules of inference differ for Justice Thomas depending on whether a litigant claiming bias is Christian, as in Masterpiece, or Muslim). 

Moreover, in cases involving citizens’ constitutional challenges to national security policies, the Court has applied precisely the same kind of deference that it used in the travel ban case. This is so in respect to First Amendment speech rights, where Chief Justice Roberts has endorsed limitations on speech and association that plainly would not be tolerated outside the national security realm.  

There is a third reason for skepticism of a citizenship limitation on today’s deference regime:  The notion that citizens’ antidiscrimination claims will receive more careful judicial attention is in stark contrast to the manner in which discrimination claims are in fact adjudicated. The Court has considered challenges to the discriminatory exercise of prosecutorial discretion in both the criminal and the immigration contexts: What is striking about the two leading decisions is that they are simply not very different. In both, as I have argued elsewhere, the Court shows a heavy deference to the government’s desire to achieve public order, and in both, the individual must try to substantiate his or her challenge without discovery—and without hope of success.  

The travel ban decision, therefore, is of a piece with a larger fabric of discrimination law in which the government has effectively insulated public safety policies from Equal Protection and First Amendment challenge—whether or not the challenger was a citizen or foreigner.  This insulation is not, to be sure, complete: The Court has taken a different tack in respect to certain prison conditions claims, under both the Constitution and the Religious Land Use and Institutionalized Persons Act. Viewed in the context of the doctrine as a whole, these decisions are distinct because they do not involve decisions about whom should be targeted initially by the coercive force of the state. Nor do they arise under circumstances in which “time was short,” as Justice Hugo Black said for the Korematsu majority. 

The deference regime of the travel ban majority, therefore, is not distinctive to noncitizens, or claims related to entry. What is exceptional about the travel ban case is also not the species of deference employed. Rather, the case is exceptional because it is rarely the case that an official actor will verbalize—repeatedly and at grotesque length—the unlawfully discriminatory bases for his or her actions.  That is, Trump v. Hawai’i could have been decided on grounds that did not impinge significantly on the deference that executive actors normally receive in the national security domain. Future presidents would have known that if they wanted to pursue a policy that targeted a protected class, they could do so provided they didn’t incite bigotry along the way. Trump v. Hawai’i, in contrast, invites a new politics of minority baiting.

That said, the core holding of Trump v. Hawai’i reaffirms and entrenches a basic division in the constitutional law of discrimination: Those challenging public order policies—in the policing, immigration, and national security—will obtain no relief from the Courts.  Those challenging regulatory policies—like the Masterpiece baker—will receive a sympathetic ear. This divide is, of course, not an innocent one: Given the racial dynamics of our criminal, immigration, and security arrangements, it will be predominantly racial, ethnic, and religious minorities of color that will be excluded from the compass of constitutional antidiscrimination laws. And as a consequence of the Court’s invitation to a divisive politics of race, it will precisely that minorities that will increasingly find themselves at the receiving end of unjustified state coercion ginned up for electoral gains.

The future of discrimination law is secure, in short—and securely shut to minority races, ethnicities, and creeds suffering at the hands of a populist majority.   

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

How the Right to Vote Became Fundamental  

8/26/20  //  Commentary

The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship