0:00:00.0 S?: The real significance of Fred's case is that it raised for the first time the central issue, was the internment itself constitutional.
0:00:12.0 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Korematsu v. United States. This case challenged the federal government's internment of Japanese-Americans during World War II.
0:00:29.1 S?: By 1944, people had already lost their property, 110,000 people. Some were now homeless, some had lost their lives. Their whole structure and community was now broken.
0:00:42.1 Leon: It would take decades for Japanese Americans to receive reparations and an apology from the federal government in 1988, and it would take three more decades for the Court to acknowledge it was wrong and overturn it in a 2018 opinion about the so-called Muslim ban. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:08.6 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have cancelled our civil liberties, like Netflix cancelling your favorite show. I'm Peter, and I'm here with Michael.
0:01:19.4 Michael: Hey, everybody.
0:01:20.8 Peter: And Rhiannon.
0:01:21.7 Rhiannon: Hi.
0:01:22.1 Michael: What show did Netflix recently cancel, leaving you?
0:01:24.9 Rhiannon: Yeah. What are you lamenting, Peter?
0:01:26.8 Peter: Honestly, nothing that I like, but I'm responding to the cancellation of Warrior Nun, which resulted in a social media campaign where the fans got NETFLIX, CORRECT YOUR MISTAKE in all caps, trending across all social media.
0:01:46.2 Michael: Oh, I saw that and I was like, What the fuck is that? But I didn't click.
0:01:49.9 Peter: Yeah, I never watched the show, don't really know anything about it, but that's a pretty wild energy to get that trending, so I wanted to throw them some respect in the intro.
0:02:00.8 Michael: Nice.
0:02:00.8 Rhiannon: May our fans one day show up for us.
0:02:04.6 Peter: Exactly. LEON, CORRECT YOUR MISTAKE. I expect to see that.
0:02:10.7 Peter: Today's case... Get ready for a real change in tone. Today's case, Korematsu v. United States. This is a case from 1944 about the internment of Japanese Americans during World War II. In 1942, FDR issued an executive order mandating the creation of certain military areas and granting the military the ability to exclude any or all Americans from those areas in its discretion. Shortly after, the military issued an order for all persons of Japanese ancestry to report to designated areas where they were then moved into concentration camps. So my dude, Fred Korematsu, a 23-year-old Japanese-American says, Go fuck yourselves, you know.
0:03:09.6 Michael: I'm not reporting to the camps.
0:03:11.7 Peter: Does not report to a camp, he stays in the so-called exclusion zone, and he gets arrested and convicted of violating the order. But he challenges his conviction, claiming that it's unconstitutional. So there's a fundamental legal question here: Ethnic concentration camps, legal, illegal? And the Supreme Court, in a 6-3 decision, says, no, they're fine, that's okay. So, Rhi, take it away with the background, I don't know how...
0:03:48.3 Rhiannon: Yeah, let's go, I guess.
0:03:50.2 Peter: I'm reading ahead into your notes and I'm seeing that you're mentioning Pearl Harbor, so you're starting right at the beginning of this.
0:03:57.1 Rhiannon: This is overwhelming, right? It's mass forced displacement and internment. There are so many legal aspects, social aspects, so much history that we could never cover in a single episode. So just want to say this will be a quick and likely incomplete overview, because we're going to be focusing, of course, on the law in the Supreme Court case.
0:04:18.2 Rhiannon: But yeah, let's just situate ourselves in history. Japan attacked Pearl Harbor on December 7, 1941. The next day, Congress declared war on Japan. A few days after that, by the way, the US declared war on Germany and Italy, and so begins the United States' direct military intervention, full participation in World War II. So less than three months after the US entered the war, FDR signed Executive Order 9066. This was an internment order, it authorized the Secretary of War and the Armed Forces to remove people of Japanese ancestry from what the Armed Forces designated as military areas in surrounding communities in the US.
0:05:07.2 Rhiannon: These military areas were designated mostly all over the West Coast. At Congressional hearings about the executive order, a majority of testimonies, including California Governor Culbert Olson and California Attorney General Earl Warren, that's future Chief Justice Earl Warren, they all declared that all Japanese people should be removed from these areas. Per the executive order, those areas were legally off-limits to Japanese citizens and Japanese-American citizens.
0:05:38.8 Rhiannon: So this order began a process, really, of mass relocation of more than 125,000 people to sites that the US government itself called detention camps. These camps were set up and occupied in a matter of 14 weeks, we're talking about just a few months that it took in the early 1940s for the United States military to move over 100,000 people. Most of the people who were put in internment lived on the West Coast, like I said. Two-thirds were American citizens. We're not talking exclusively about immigrants, although of course that's horrific too. These are mostly American citizens of Japanese heritage and ancestry. Anyone in fact who was at least one-sixteenth Japanese was forcibly removed, ordered to be removed from these military areas.
0:06:35.7 Rhiannon: That included 17,000 children under the age of 10. These sites were really spread over seven states in the western United States, including really remote locations in Washington, Idaho, Utah, Arizona. They're taking people from their homes in California, for instance, in Los Angeles, and taking them to Idaho in the middle of nowhere to an internment camp. In Portland, Oregon, 3000 people stayed in the livestock pavilion of the Pacific International livestock facilities. Two of the prison camps in Arizona were located on Native American reservations. Just like a whole host of horrors, just based on location and where they are interning all of these people, on top of the fact that the Japanese Americans in these camps were abused. People were shot and killed for walking too close to the perimeter, food rationing was extremely stressful.
0:07:33.0 Rhiannon: This is literal prison camp conditions in remote locations across the United States, and the vast majority of the people targeted are Japanese. So this is the situation in 1942 when Fred Korematsu refuses to comply with the order to report to a camp. Korematsu was an American citizen. He was born in the US to Japanese immigrant parents. He was 23 years old and arrested on Memorial Day 1942 on suspicion of being Japanese.
0:08:13.0 Peter: Suspicion of being Japanese.
0:08:14.4 Rhiannon: Like literally tracking down people of a certain race, right?
0:08:17.8 Michael: Yeah. Which is just like when we get to the opinion and you hear the majority being like, This isn't about racism, just remember, he was arrested on suspicion of being Japanese.
0:08:29.2 Rhiannon: Exactly. His family, in fact, had already been relocated, he stayed behind. There are some interviews or he might have told the police at the time that he was staying behind trying to save money so that he could move of his own free will to the Midwest. He obviously did not want to report to or live in a fucking concentration camp. So he stayed behind and he was charged with defying that new federal law, which made it a crime to ignore a military relocation order.
0:08:58.5 Peter: Oh, you won't get into our concentration camp? Well, then we will send you to prison.
0:09:04.0 Rhiannon: That's right. He was moved to Tanforan Assembly Center, which was a former race track that held nearly 8000 people, where he was assigned to live in a horse stall with a straw mattress and one light bulb. He took his criminal case to trial, and Mr. Korematsu testified that he had actually registered for the draft, he had wanted to join the US military, but had not been allowed to join. He testified that he had never been to Japan. He barely spoke Japanese, he couldn't read Japanese. Nevertheless, Mr. Korematsu was found guilty of violating the removal order, and the Judge sentenced him to five years probation while of course, he was sent back to the prison camp. So Mr. Korematsu appealed his conviction, and that's how we make it to the Supreme Court.
0:09:55.9 Peter: Alright, so let's talk about the opinion here. Korematsu challenges his imprisonment, essentially on the position that this is racist and in excess of the war powers of the United States government. The Court starts off by acknowledging that when the government limits the civil rights of a race, the Court needs to subject the law to the most rigid scrutiny, but they ultimately essentially say, Look, we are at war, we need to defer to the military here, and they sort of say, Well, look, no doubt most Japanese Americans are loyal to our country, but we don't know how to identify that disloyal ones, so these measures are necessary, and again, we just sort of have to give the military the power that they need during times like this.
0:10:54.7 Peter: The Court then tries to explain that this is not about racial prejudice. Here is a quote: "To cast this case into outlines of racial prejudice without reference to the real military dangers which were presented merely confuses the issue. Korematsu was not excluded from the military area because of hostility to him or his race, he was excluded because we are at war with the Japanese empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily." So this is not about racial prejudice, folks, this is about protecting ourselves from the dastardly Japanese.
0:11:51.3 Peter: This is like a slightly antiquated form of modern racial discourse where someone's like, I'm not being racist, it's just that blank, and whatever they say is very racist. Except this is like an older version of that where they lacked the nuanced vocabulary, so they were like, This isn't about racial prejudice, this is about the danger posed to us by the ethnic Japanese.
0:12:15.9 Rhiannon: Right, right, exactly. It's like completely an argument about semantics, like, great, we're going to argue semantics in a Supreme Court opinion, like they're work shopping vocabulary. What's it called when you experiment with an advertising campaign to a group of people?
0:12:31.9 Michael: Oh, like focus grouping?
0:12:33.8 Rhiannon: Yeah, like a focus group. This opinion is a fucking focus group for the words we're going to use to talk about racism. And there's another part in the opinion where they say, quote: "Our task would be simple, our duty clear where this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers, and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies, we are dealing specifically with nothing but an exclusion order." So just saying we're not going to call them concentration camps 'cause that feels bad, I don't like calling it a concentration camp, right? We're not dealing with just racial prejudice here, it's just incomplete denial of what's happening and very much a vocabulary and linguistic whitewashing of legally what is going on in reality.
0:13:32.4 Michael: Yeah. I'm glad you picked out that passage, Rhi, because I also wanted to highlight that, because I think it really shows how cowardly this opinion is too, where they're like, We're not going to call the camps concentration camps, and we're not even going to rule on the legality of the concentration camps in a formal manner, all we're doing is saying this exclusion rule that Korematsu violated, that is constitutional. You could exclude him from the zone, just totally putting their head in the sand or bullshitting, really, about what the exclusion order is, right, but the exclusion order is inexorably tied to the concentration camps. When I talk about the dissents, I'll talk a little bit more about this, there's no disentangling the camps from the exclusion order, they were one and the same.
0:14:23.9 Rhiannon: Right, and there's no disentangling those too with racist targeting of a group of people.
0:14:29.1 Michael: That's absolutely right.
0:14:30.1 Peter: And pretending that they're not. So this decision is basically the Court saying, We are going to allow for some heinous things during wartime. And at times, especially in the concurrences, they expressly state that, but there's a degree to which they're also not being honest about just how heinous this stuff is, because they can't even bring themselves to say, Yes, we're allowing for concentration camps. They have to pretend that it's something else. We don't want to call them concentration camps with all the ugly connotations that term implies. Like, well, the connotations that are associated with concentration camps, all of which apply to these exact situation.
0:15:20.4 Peter: I agree that there are ugly connotations, but that's why concentration camps are bad, right, it's a reason to dodge the term. The Court also tries to hand wave this away, because they rely heavily on a case from a couple of years prior called Hirabayashi, where they upheld curfews for Japanese Americans based on the same principles. So the Court is basically saying like, Hey, look, we already decided a case like this, curfews, concentration camps, it's all the same basic thing.
0:15:54.7 Rhiannon: Right, right. When you're talking about a scary people, this is all the same.
0:16:00.3 Peter: Yeah, the premise behind that case and the premise behind this case in the broadest terms were similar, basically meaning, yes, we are going to allow the military to engage in racial discrimination, but there is a pretty clear matter of degree that they don't really reckon with, where it's like, what are the outer boundaries of the horrible crimes you're going to allow the military to commit against people of Japanese descent.
0:16:28.1 Rhiannon: Yeah, what's the ceiling here?
0:16:29.3 Peter: The Court doesn't reckon with that at all, there's just sort of a we're at war, we're going to let the military do what they say that they need to do.
0:16:38.2 Rhiannon: Yep, which brings me to the Justice Frankfurter concurrence. This concurrence is three paragraphs long, he didn't have much to say, but it is three paragraphs of war propaganda through a legal filter. He says, quote: "The war power of the government is the power to wage war successfully." So totally just saying that this is a military wartime strategy by the United States, and if the military says that's what they need to do, then the Constitution needs to step aside.
0:17:13.9 Rhiannon: The thesis, the main argument, I guess if you could say there is one in these ridiculous three paragraphs, is that the constitutional provisions allowing Congress to declare war are equal to other constitutional provisions that are relevant during peacetime. So what he says is that if we say that the military action, these exclusion orders are unconstitutional, well, then we are taking away the government's power given to it by the Constitution. There's a quote: "That action is not to be stigmatized as lawless, because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as an unconstitutional order is to suffuse a part of the Constitution with an atmosphere of unconstitutionality."
0:18:06.2 Rhiannon: So he's saying if something egregious and awful as is the case here is found unconstitutional, then you're making the Constitution seem unconstitutional. We've said this before, especially in the context of wartime jurisprudence and in general executive power with regards to national security, but the Supreme Court here is acting in exactly the opposite way that we're taught they should be acting in a world of supposed checks and balances.
0:18:38.4 Michael: In high school or wherever we learn of that.
0:18:41.2 Rhiannon: Exactly. We've learned that the Justices have lifetime appointments, so that they're unencumbered by political whims and the tyranny of the majority, right, so that they can keep the political branches in check when needed. The Supreme Court is supposed to be there so that they can say no, even when we are at war, the constitutional protections afforded to people are still intact and they have to be upheld. Here is a really good, dark good, example of how it usually happens, though, which is that the Supreme Court just green-lights some heinous racist and violent shit all in the name of war or national security or whatever.
0:19:22.3 Peter: That's right. And there is a real sort of... To call it policymaking almost under-sells it, but there's a real deference that you've seen across conservatives for generations to the war powers of the United States government, but what is the point of the Constitution if it just falls away as soon as there's military conflict? Surely, the entire purpose of the document is not that you can just say, yeah, we're abandoning it strategically at certain times. Now, they might think, well, this makes the war effort harder. Sure. It's just like, just like the fact that police can't arrest and beat whoever they want under the Fourth Amendment, if you read it properly, just like that might in their minds impede their ability to to reduce crime or whatever, there's all sorts of civil rights protections that make the government's job harder.
0:20:23.6 Peter: The point of the Constitution is to say, so be it. That's...
0:20:27.4 Rhiannon: Exactly, exactly.
0:20:29.4 Michael: Yeah, that was... You know, I was watching football this weekend and somebody, one of the coaches, said something like, Who needs leaders when things are going well. It's like when things are going bad, when things are tough, that's when you need leadership. And so much of the protections the Justices are given are precisely to free them to exert that sort of leadership, when it's hard, when it's unpopular, when you're saying No, you can't just intern 70,000 American citizens and another 30,000 immigrants or whatever, just because they're Japanese and you're scared. The Constitution doesn't allow that, right, but they're scared too. They're fucking cowards too, and this case is an embarrassment as a result.
0:21:21.6 Michael: But it wasn't 9-0, it wasn't like there weren't people who... I'm triple negativing here. It was the case that people saw through this at the time, right, this isn't a benefit of hindsight.
0:21:36.3 Rhiannon: Yeah, while on the one hand, there was mass panic and there was popular support for internment of Japanese Americans in the US, on the other hand, there were people at the time who knew this was wrong and who knew that it was a bad, racist policy. There were activists, there were people in the US government who were close to the president and other advisors, there were lawyers, there were people even in the US military who said, This is a bad idea, this is wrong.
0:22:10.0 Rhiannon: There was a Naval intelligence officer named Kenneth Ringle who was assigned to write a report on the loyalty of Japanese Americans. He wrote, quote: "The entire 'Japanese problem' has been magnified out of its true proportion, largely because of the physical characteristics of the people." Later he writes, quote: "It should be handled on the basis of the individual, not on a racial basis." So this is a member of military intelligence saying that this policy, the mass internment of Japanese Americans, this is disproportionate to the ostensible threat that is posed to the US. That's even coming from the military. So I think accounts like this, of the contemporaneous objections to these policies, really just underscore the cowardice of the Supreme Court here.
0:23:07.9 Michael: I think Frank Murphy and Owen Roberts both have pretty good dissents and they both take different tacks. So Roberts, he's a little less forceful with his language than Murphy, but he lays out a really helpful timeline, where he points out that prior to the exclusion order, the military had issued an order forbidding anyone from leaving the military zone who currently lived there, so Korematsu was not allowed to leave this area. And then subsequently followed that up, not overriding, but in tandem with that, the exclusion order that you can't stay in this military zone either, so he wasn't free to just get up and move to Florida if he was like, I don't like the tone of things here, like he couldn't just leave.
0:23:58.3 Michael: And his point is, one, he has two orders here, one that says you can't leave and one that says you can't stay, obviously that's like a violation of due process, but also you can't really disentangle this from the concentration camps as a result, 'cause the point is just to put people in camps, it's not to remove security threats from a sensitive area. If that were the case, you could just let the Japanese Americans leave, but that's not what they wanted. They didn't want them to leave the West Coast, they wanted to put them in camps.
0:24:32.6 Michael: Another thing he points out is that German and Italian Americans got individualized investigations into their loyalty, it was only the Japanese that were just in mass segregated, which is obviously racial. And then Murphy's dissent is a lot more, I think, forceful with the language calling this out as racist. He opens with saying that this falls into "the ugly abyss of racism" and calls it "abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy." He's going all out, and it's pretty strong.
0:25:16.7 Peter: Also worth noting that it's true that we didn't have full vision into what was happening in Europe at the time, like what exactly the Nazis were doing, but that dissent is making it clear that we knew enough to know that like what they were doing and what we were doing over here, actually pretty similar in some regards.
0:25:38.3 Rhiannon: Right. They didn't want to call it concentration camps on purpose.
0:25:41.4 Michael: Right, and the majority tries to deny that this is like racial in nature. Murphy, I think, really skewers them, because he points out that the military's justification for exclusion, he says, is mainly upon "questionable racial and sociological grounds not ordinarily within the realm of expert military judgment." Like, and he quotes: "Describing the Japanese as a large, unassimilated tightly-knit racial group, bonded to an enemy nation by strong ties of race, culture, custom and religion, who are given to Emperor-worshipping ceremonies and to 'dual citizenship'."
0:26:26.1 Michael: So this is just like unvarnished, unambiguous racism that the majority is just papering over here, pretending like they didn't see you. That's underlying this policy, right, it's just some fucking racist military guys being like, I don't trust the Japanese, and that's really it. So yeah, this isn't like, Oh, we see, looking back how ugly this was, there were people in the time, in the moment, putting in the pages of the Supreme Court reporter very clearly just how ugly and racist and evil this policy was. The Court just didn't have the courage to say that with one voice.
0:27:19.4 Peter: Yeah, Justice Jackson puts in another dissent, which is sort of an odd one. He essentially says that courts don't have a real jurisdiction here, but that he also would not be willing to ratify an unconstitutional order and therefore would discharge the prisoner, meaning free Korematsu. He says that it's racist and notes that in peacetime it would definitely be illegal, but has this sort of viewpoint that military affairs are to some degree separate from the Court's responsibility. So he's dissenting, he's saying that to the extent this is before the Court, he would discharge the prisoner, but he's sort of maintaining this distance between the Court and military affairs, which is I think the primary distinction between his dissent and the others.
0:28:11.3 Peter: Sort of an interesting relic of the time, because, I don't know, here we have this sort of monumentally horrific case, and then there's just lawyers arguing technicalities, and that's what it feels like Jackson is doing. Even if he's coming out the right way, his dissent reads very technical and it's sort of... It's unpleasant to read his dissent, even though he's coming out on the side of Korematsu.
0:28:35.7 Michael: Yeah, you have such moral authority here; to not wield it is a bizarre choice. Now, this case was good law up until a few years ago, and we'll talk about that in a little bit, but whether or not it's formally good law, the pattern it evinces is pretty consistent, I think, throughout American history of the courts wussing out when national security is in question and giving broad deference to the executive to run rough over the Constitution. We talked about this when we did our war on terror case. Traditionally, the pattern is that the Court is very deferential around the time of emergencies, and as the emergency sort of fades, they become less differential. That pattern has not really held, though, here, because the Court has been lurched so far to the right that they are... You might expect them to be even more deferential now to the executive, and they were right after 9-11, and they were pretty differential then, but not laying down necessarily.
0:29:53.3 Michael: The biggest freak of them all is undoubtedly Clarence Thomas, who we've talked about on this, who is like, just Let's give up all our rights and let's just let the Republican President, of course, throw Muslims in jail, civil liberties are out the window. Indefinite detention, incommunicado indefinite detention, that's fine. Things that happen overseas, we don't care about that either. Just real sicko authoritarian shit. So yeah, this case... The past isn't dead, it's not even past, right, that's what this case feels like reading it to me.
0:30:35.5 Rhiannon: You know, when I read the case, I can't help but think about Governor Greg Abbott here in Texas and the mass busing of migrants, this really political stunt that he has been playing on the backs of thousands of people. If you haven't heard this story, hundreds, more than 13,000 migrants, in fact, who have just come over the border into Texas, Governor Greg Abbott is mandating that DPS, that state police put these migrants onto buses and busing them all over the country, to the tune of some $30 million by the state of Texas. In November, Governor Abbott said: "Until the Biden administration does its job and provides Texans and the American people with sustainable border security, Texas will continue doing more than any other state in the nation's history to defend against an invasion along the border, including adding more sanctuary cities like Philadelphia as drop-off locations for our busing strategy."
0:31:41.0 Rhiannon: And so it's very different than the situation in World War II, the situation that befell Japanese Americans in putting them in internment, in concentration camps, but there are also some clear similarities here. The targeting of a people based on ethnicity, based on national origin, based on their race, the idea that they are invading our country, the idea that there has to be a strategy to move them around, this is mass human trafficking by a governor, and it's just for me about making those connections that these kinds of things... Injustice, I guess, is often legal, is often given the green light by the Supreme Court, the federal government, here a state government, and the federal government hasn't done shit about it, so just have to mention, the modern parallels, these kinds of struggles are ongoing.
0:32:37.9 Michael: That's right.
0:32:39.0 Peter: And I understand that it's all political theater, but there's something so obscene about DeSantis and Abbott being like, we'll see how you like having illegal immigrants in your backyard. And it's like... I live in New York City. Immigrants in my New York City? Like all of politics now occurs in a complete fantasy land mind space, it's just... It's impossible to engage with in any real way. So speaking of the various ways in which Korematsu intersects with modern life, like Michael mentioned, one of the more remarkable things about this case is that it wasn't overturned until 2018 in Trump v. Hawaii. We did an episode on that case quite a while back, but in short, it was the case that decided the constitutionality of Donald Trump's so-called Muslim ban.
0:33:34.5 Peter: What happened was that Trump during his campaign said, I'm going to ban Muslims from entering the country, right, until we can figure out what's going on. And that gets implemented in certain regards, makes its way up to the Court, gets struck down, gets sort of re-jiggered, makes its way back up to the Court, gets struck down. Each time the Trump administration would make it a little less offensive to see if they could get away with it. Eventually, what happens is there's a ban, but it doesn't apply to Muslims per se, it just implements aggressive travel restrictions on people from certain countries, Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen. This gets challenged in court because despite the fact that it's no longer a Muslim ban, literally, everyone knew that this was originally the Muslim ban, right, that's the whole point of it.
0:34:30.2 Peter: And the fact that it's no longer quite that is just a way for the Trump administration to ban as many Muslims as they can from entering the country while maintaining deniability. But the Court upholds the ban, of course. And what they say is, Look, no matter what Trump's intent was, this is no longer a Muslim ban, it's just an effort to improve national security, right, so we're good. Now, I bring this up for two reasons. One is that, of course, you can see the parallels with Korematsu. In both situations, the Court is hand-waving away the claims of prejudice and basically pretending that the only concerns are security concerns, and that any appearance of prejudice is just a coincidence, but the other is that multiple people in Trump v. Hawaii, including Sotomayor in dissent, pointed out the similarity between this case and Korematsu, and John Roberts and the majority was like, how dare you.
0:35:23.7 Peter: He says, quote: "Korematsu has nothing to do with this case. The forcible relocation of US citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful and outside the scope of presidential authority." So yeah, these cases are totally unrelated, Korematsu was about relocating people based on their national origin, this case is about forbidding people from entering the country based on their national origin. Bet you feel stupid now, Sonia Sotomayor.
0:35:56.8 Rhiannon: Yeah, yeah, gotcha, dummy.
0:36:01.4 Peter: And then he drops a footnote overturning Korematsu, which to that point had not been overturned by the Court, not necessarily, of course, because the Court endorsed it per se, but because it had not come to be challenged. So while carrying forward the spiritual heart of Korematsu, which is about using national security to justify discrimination, he takes the purely symbolic step of overturning the case. You could not write a better metaphor for the conservative approach to legal discrimination if you tried for a thousand years.
0:36:39.4 Rhiannon: Yes, exactly.
0:36:41.6 Peter: He even takes the same, like sort of, if you deconstruct the opinion, it's the same form where the majority in Korematsu is sitting here saying this isn't about concentration camps, this is about an exclusion order, and is very similar, where they're like, this isn't a Muslim ban anymore, this is travel restrictions from certain countries. And it's like, it's very like, it's unreal how similar the cases are, it's unbelievable how similar the cases they are, and for it to be the one where they overrule it, it's just breathtaking, it's incredible.
0:37:17.6 Michael: It is worth noting, as Peter mentioned, Korematsu opens with this idea that when the government explicitly categorizes people based on race and subjects one racial group to differential worse treatment, that the Court needs to scrutinize that rigidly, needs to give it the most thorough look to make sure there's nothing unconstitutional going on there. This became the backbone for all of equal protection law, this fake test that they made up to pretend like they were taking this seriously while rubber-stamping concentration camps, green-lighting concentration camps became the test that you learn in law school in con law, that is like the fundamentals of equal protection law in this country to this day. Even with Korematsu overturned, that's still the case, the strict scrutiny, the highest scrutiny the courts apply to cases, the name of one of our friendly rival podcasts.
0:38:27.1 Peter: Yeah, they named it after Korematsu.
0:38:28.9 Michael: Yeah, that's right. They might not have realized it, but... Yeah.
0:38:35.8 Peter: I think they knew. No, it's true, and it's funny that they create this test, like you said, just to give the appearance of thoroughness and thoughtfulness, and then that fake test becomes real, and 80 years later is being used to strike down affirmative action plans. We are in fucking hell. We're in hell.
0:39:02.5 Rhiannon: Yes. Get me off this time line.
0:39:07.3 Peter: Oh, Jesus, great. This is one of those cases that when we first started the show, I was like, well, we'll probably never do Korematsu because it's the kind of case that's so obviously horrible and disgusting that you almost can't say anything about it, and then you read Supreme Court cases for three years and you're like, oh, actually, no, this is a lot like modern cases, the parallels are right there, right in your face, incredibly striking. Even really overt stuff like Felix Frankfurter, stupid fucking name, by the way, he writes his awful concurrence, this psychotic fascist concurrence, he's like a hero to conservatives, like Federalist Society weirdos. They love it. They downplay shit like this, but shit like this is why the conservative movement at the time liked him, and you can't separate it out from the rest of his body of work, it's directly fused with it.
0:40:10.5 Peter: We're 80 years out from this case, but it feels to me when I read it and when I read modern cases, and when I look at modern headlines concerning immigration, etcetera, it really doesn't feel distant at all to me, it feels like the same exact logic, but the product of a time when the conservative vocabulary for this stuff was just a little bit less refined. They didn't feel the need to hide some of the racism as much, but they felt it a little bit, and so you see them start to adjust the way they talk about these things. Trying to accomplish the same goal, but just obscuring it a bit. And now we're at a point when they're doing the same thing, but they have 80 years of practice in obscuring what they're doing.
0:41:04.1 Peter: Next week, we are having a conversation with David Enrich, the author of Servants of the Damned, a book about the relationship between the big law firm Jones Day and the Trump administration. We're pretty excited for this, because I've been a hater of Jones Day for many years and ready to talk some shit about big law with David Enrich. We'll be recording that conversation live at Harvard, Harvard Law School.
0:41:32.1 Peter: Follow us on Twitter @fivefourpod, follow us on Instagram @fivefourpod, subscribe to our Patreon, patreon.com/fivefour for premium episodes, ad-free episodes, access to our Slack. And we are going to be in Austin, Texas, live on February 24th.
0:41:56.0 Michael: And if you want us to settle a dispute between you and a family member, an enemy or your date, shoot us an email at email@example.com. Put Judge Judy in the subject line, and if it's not terrible, we just might help you find peace in your life.
0:42:20.6 Peter: Yeah, last time, there was a man who ate seven stray oysters that he was given for free, and his girlfriend who thought that was gross, and we figured out who was more wrong using logic.
0:42:35.9 Rhiannon: Yeah, we adjudicated that claim and brought justice to their lives.
0:42:41.1 Michael: They were on the verge of breaking up. And now I think they're married and have like several kids.
0:42:48.4 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.