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The Supreme Court’s illiberal legacy

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Shahrukh Khan is a J.D. candidate at Emory University School of Law.

By the time most American schoolchildren enter high school, they are generally familiar with bits and pieces of U.S. legal history, especially as it relates to discrimination. In particular, Supreme Court cases such as Dred Scott v. SanfordPlessy v. Ferguson and Korematsu v. United States command unique attention in the nation’s conscience because, in hindsight, the decisions seem so strikingly wrong.

In Dred Scott, the Supreme Court held that black people could not be citizens. In Plessy, the court gave new legal force to the “separate but equal” doctrine, holding that it was constitutional for Louisiana to have racially segregated railway cars. In Korematsu, the court signed off on Japanese internment. These cases make up what legal scholar Jamal Greene refers to as “the anticanon,” because they are bad precedent on which judges rarely rely when deciding a case.

American legal and racial history are often celebrated through a broadly progressive lens, through which these cases are dismissed as mistakes or part of America’s darker moments. But a recent case suggests that the qualities that give the anti-canon its disrepute stubbornly persist in American jurisprudence — and are quite compatible with, even necessary to, American constitutionalism.

Last year, in Trump v. Hawaii, the court revisited an executive order issued by President Trump, in which he restricted travel and immigration to the United States from a number of countries, some of which had Muslim-majority populations. It was the third iteration of the order (the other two had been struck down by lower federal courts) and was strongly tied to Trump’s campaign promise to ban Muslims from entering the United States.

The order itself, though, did not mention any particular group of people and was thus “facially neutral toward religion.” That didn’t stop four Supreme Court justices from disagreeing with the majority opinion, however. In her dissent, Justice Sonia Sotomayor argued that the majority opinion was based on “dangerous stereotypes” about “a particular group’s supposed inability to assimilate and desire to harm the United States.” Its reasoning was similar to that in the Korematsudecision, she wrote, a claim to which the majority took offense.

Indeed, the majority seized the chance to officially overrule Korematsu. Chief Justice John G. Roberts Jr. wrote, “The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided.” To reconcile rejecting Korematsu while upholding the travel ban, the majority argued that Trump was not a case about citizens, like Korematsu, but about aliens attempting to enter the country.

Yet wherever one lands on the constitutionality of the executive order, the court’s reasoning in Trump should not be taken as a betrayal of American values — at least, not as they’ve been historically expressed.

While critics of the decisions in the anti-canon point to how democratic values and the protection of individual rights are at the core of our constitutional structure, those ideals have been regularly counterbalanced by a constitutional history of restrictive nationalism and state consolidation of power. As legal historian Robert Tsai argues, “If the Constitution has prevailed as an ideal, it has been through increasingly complex strategies to match the outbursts of the discontented” in American history.

Such “outbursts” drove the events that paved the way for Plessy, which legitimated a regime of segregation and discrimination that lasted for decades. Reconstruction, the federal effort to protect the rights of black Americans after the Civil War, formally ended as a result of the Compromise of 1877, in which Southern Democrats agreed to cede the 1876 election to Republican Rutherford Hayes (over Democrat Samuel Tilden) in return for the complete withdrawal of federal troops from the South. Before the compromise, thousands of Tilden’s supporters threatened violence in the event that he was not elected. Placating them by withdrawing federal troops allowed white Southerners to construct the Jim Crow regime that Plessy sanctified.

Read entire article at The Washington Post

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