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The Supreme Court's illiberal legacy
Perspective: The Supreme Court’s illiberal legacy
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Made by History • Perspective
The Supreme Court’s illiberal legacy
Why liberals shouldn’t put too much faith in the nation’s highest court.
By Shahrukh Khan
Shahrukh Khan is a J.D. candidate at Emory University School of Law.
August 6 at 6:00 AM
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. Sanford, Plessy 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 Korematsu decision, she wrote, a claim to which the majority took offense.
....
Shahrukh Khan is a J.D. candidate at Emory University School of Law. Follow https://twitter.com/Shahrukh_HKhan
The Supreme Court’s illiberal legacy
Why liberals shouldn’t put too much faith in the nation’s highest court.
By Shahrukh Khan
Shahrukh Khan is a J.D. candidate at Emory University School of Law.
August 6 at 6:00 AM
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. Sanford, Plessy 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 Korematsu decision, she wrote, a claim to which the majority took offense.
....
Shahrukh Khan is a J.D. candidate at Emory University School of Law. Follow https://twitter.com/Shahrukh_HKhan