Justice Stephen Breyer and Justice Sonia Sotomayor showed how deeply divided this country is when they courageously spoke from the bench to condemn the majority 5-4 decision in favor of the Trump travel ban.
But it’s Sotomayor’s historical twist that deserves the headline as she invoked the name Korematsu.
What better way to mark the occasion than to bring up the historical case that every freedom-loving American should know?
Sotomayor’s experience as a person of color and her understanding of history gave her the wisdom to say that one day we’ll all wake up and be ashamed by the backwards step that is the Trump travel ban.
The parallels are clear.
”By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security,” she said, “the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
All along, Asian Americans knew instinctively what was at stake, and how a travel ban went right to the core of the basic freedoms we hold dear in a democracy, like the freedom of speech and religion. The travel ban prejudges groups of innocent people from specific countries and makes them enemies of America.
It’s the same way that America justified the incarceration of more than 120,000 Japanese Americans during World War II.
Undoing those scars has not been easy.
But that’s the price of bad laws being upheld in America. And here we go again.
You’ve heard the words, “Those who cannot learn from history are doomed to repeat it.“
It’s an actual misquote from the Spanish philosopher George Santayana, who in his “Reason in Common Sense” around 1905 actually wrote this: “When experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”
Which is why Korematsu deserves to be the cry of our times, when we have a politically stacked Supreme Court approving a savage assault on the Constitution, perpetrated by an inexperienced president with an irrational fear of all foreigners, and specifically MS-13, Muslims, and Arabs.
If Trump had a sense of history, or bothered to read a briefing book, he’d take the time to understand what happened in the case of Fred Korematsu.
Korematsu, a young man from Oakland, California, was the one who said no to the incarceration of Japanese Americans ordered by President Roosevelt during World War II.
Korematsu stood up, resisted, refused to go the camp, and paid the price in 1942.
When he was arrested for his principled stand, the ACLU took his case all the way to the U.S. Supreme Court. The government upheld his conviction and the incarceration of Japanese Americans, citing “military necessity.”
Critics have said the Court seemed unwilling to go against the government and President Roosevelt, although three justices dissented.
But here’s what isn’t as well known about the Korematsu case.
Korematsu lost his constitutional challenge and spent time in an internment camp. But he also found that not only was he shunned by general society and his country at war, he was also shunned by other Japanese Americans in camp who believed he should have shut up and cooperated.
Vindication ultimately would come to Korematsu four decades later.
In 1983, Prof. Peter Irons, a legal historian, discovered government memos that were withheld from the Supreme Court in 1944. The documents revealed an internal struggle within the government on how to present the case. Would it proceed with the Army’s contention that Japanese Americans were a threat to national security? Or would it also present information from the FBI and other military intelligence that contradicted the Army?
The Army’s perspective prevailed. But Irons said a statement in one military document continued to haunt and fuel the protest. It read: “We are telling lies to the Supreme Court. We have an obligation to tell the truth.”
Lies? Or as Trump would say, “alternate facts”?
The discovery of the suppressed information enabled a group of attorneys, mostly young Japanese Americans, to reopen the case and overturn Korematsu’s conviction in 1983 in a federal district court in San Francisco.
There was one catch.
Because the government declined to appeal, the 1944 Supreme Court decision still technically stands.
Korematsu’s legal team couldn’t directly challenge the high court’s opinion.
“We were stuck at the district court level,” said lead attorney Dale Minami. “But we did undercut the factual and legal basis for what the Supreme Court did.”
When I talked to Minami a few years ago, it was during the Obama years. He told me it would be ignorant for anyone to use Korematsu as a precedent today for the wholesale imprisonment of people because of their race.
That’s what we all thought.
What he didn’t imagine was the ignorance of a whole country and political class to make Donald J. Trump the 45th president of the United States.
Remember when Sen. Chuck Schumer called Trump’s travel ban “un-American and mean-spirited,” and even shed a tear for the refugees blocked by the executive order, Trump mocked him by saying, “Who was his acting coach?”
Trump’s words and actions during this whole ordeal matter. And that was a key part in fighting this final iteration of the travel ban. The statements of Trump about the ban were used against him. But SCOTUS essentially discounted them. Parts of the ban also went through more revisions, such as the addition of non-Muslim countries, and input from other organizations both in and out of the administration.
But a watered-down ban 3.0 is still poisonous, all while strengthening the power of the presidency.
It also helps to keep Trump in line with the worldwide trend of strong men in power.
In his time in office, Trump has joked about China’s Xi.
“He’s now president for life. President for life. And he’s great,” Trump said, according to a recording obtained by CNN. “I think it’s great. Maybe we’ll give that a shot someday.”
We remember him admiring how Kim Jong Un’s people stood in attention whenever the supreme leader talked.
And we know how much he likes the lethal justice of the Philippines’ Rodrigo Duterte, who recently went on a rant about God, saying, “Who is this stupid God?
That’s how corrupt power can be. Above the law. And God?
The leader of the free world should be railing out against this worldwide autocratic trend, not trying to emulate such anti-democratic tendencies.
But now emboldened by a Supreme Court ruling that has redefined presidential power to Trump’s satisfaction, our democracy under Trump is clearly in what I call a state of tafu. (See previous column: it’s the word you use when snafu is not enough).
Don’t be fooled. Travel Ban 3.0 is hardly what Trump calls it–“a great victory for our constitution.”
It is, however, a reminder that we can never give up the fight to preserve our democratic ideals.
We’ve been here before and we’ve recovered. History tells us that.
Someday we will look back with horror and realize the error–if we’re lucky enough to survive this stress test on democracy,and we don’t give up.
From the bench, Sotomayor gave us the battle cry: Korematsu.