Trump v. Hawaii and Chief Justice Roberts’s “Korematsu Overruled” Parlor Trick

In Chief Justice John Roberts’s 5-4 opinion in Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of Koremtasu v. United States.

Korematsu, of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in Trump v. Hawaii, Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling Korematsu.”

However, especially in the context of a decision validating a policy primarily motivated by anti-Muslim animus, there is little to find “laudable” in Roberts’s self-serving discussion of Korematsu. Clearly, Roberts saw “rhetorical advantage” (to borrow his own phrase) in characterizing Korematsu as affirming the deprivation of Japanese Americans’ liberty “solely and explicitly on the basis of race” and then proceeding to forcefully denounce the decision. But the Court deserves very little credit for the manner in which it has sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to “overrule” Korematsu.

In fact, a careful reading of both Trump v. Hawaii and Korematsu demonstrates that the Court has overruled precisely nothing. For one thing, on Roberts’s own terms the passage discussing Korematsu is entirely dicta. It is revealing for the Court to protest so loudly that Korematsu “has nothing to do with this case,” but in the next breath to proclaim, just as loudly, that it was thereby overruling that ostensibly irrelevant precedent.

More fundamentally, however, Roberts provides an incorrect and misleading account of Korematsu itself—which means that the decision he purports to “overrule” is not quite the one that the Korematsu Court itself actually rendered. Roberts’s opinion characterizes Korematsu as holding that “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race” is constitutional. While that formulation operates effectively to make Korematsu seem more distant from Trump v. Hawaii than it actually is, it incorrectly describes what Korematsu actually purported to decide and fails to adequately grapple with the decision’s flaws.

There is no question that the exclusion, removal, and internment of Japanese Americans during World War II was motivated by racial hostility and discrimination. The policy emerged from a climate of openly racist hysteria, in which politicians, opinion writers, and anti-Asian nativist groups loudly campaigned for mass exclusion, removal, and incarceration of Japanese Americans living on the Pacific Coast. Federal officials proved sympathetic. The Pacific Coast military commander, Lt. Gen. John L. DeWitt, made many racist statements to justify his recommendation for internment—including, to take just one example among many, by describing Japanese Americans as “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.”

In Korematsu itself, however, the Court did not, in fact, profess to validate “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race,” as Roberts suggests. Rather, in a manner very much akin to Roberts’s opinion in Trump v. Hawaii, Justice Hugo Black’s opinion for the Court in Korematsu danced around and downplayed the openly racist context from which the government’s exclusion order emerged. (Contrary to Roberts’s description, Black also focused exclusively on the order excluding Japanese Americans from the Pacific Coast—rather than the broader overall policy of exclusion, forcible removal, and incarceration of which the exclusion order was one integral component—and thereby downplayed the strength of the liberty interests at issue.) Like Roberts, Black ultimately proved unwilling to examine the true reasons behind an order that facially purported to rest on security-related grounds independent of racial animus, hostility, or discrimination.

A comparison of the language in the two cases makes clear just how misleading Roberts’s account of Korematsu actually is—while at the same time confirming Sotomayor’s observation that there are “stark parallels between the reasoning” of the two cases. In his opinion, Roberts acknowledges that “one religious denomination cannot be officially preferred over another” under the First Amendment. For his part in Korematsu, Black, who had formerly been involved with the Ku Klux Klan, acknowledged in a similarly pro forma manner that “racial antagonism never can” justify “legal restrictions which curtail the civil rights of a single racial group.”

However, Black went on to emphasize that Korematsu “was not excluded from the Military Area because of hostility to him or his race.” Rather, Black maintained, Korematsu was excluded for reasons other than discrimination: “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, [and] because they decided the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.” Similarly, Roberts’s Trump v. Hawaii opinion emphasizes that the presidential proclamation instituting Trump’s third Muslim ban “is expressly premised on legitimate purposes: Preventing entry of nationals who cannot be adequately vetted and inducting other nations to improve their practices. The text says nothing about religion.”

In Korematsu, Black emphasized that “the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at the time these actions were unjustified.” In Trump v. Hawaii, Roberts similarly insists that “we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’”

At the time that Korematsu was decided, Justice Robert Jackson—whose dissenting opinion in Korematsu Roberts eagerly embraces in Trump v. Hawaii—fully understood that the government’s arguments and Black’s opinion rested on an unwillingness to examine the true reasons for the exclusion order. As Jackson described in his dissent, “it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them.”

Jackson was unwilling to abdicate the judicial role to that extent. (Neither, it must also be noted, was Jackson ultimately prepared to have the judiciary stand in the way of internment, for which Eugene Rostow criticized him in his 1945 law review article on the Supreme Court’s internment cases.) Jackson noted that “[t]here is sharp controversy as to the credibility of the DeWitt report” that recommended and justified the military’s exclusion and internment orders. “How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court,” he added.

In his separate dissenting opinion, Justice Frank Murphy went further. Murphy devoted several pages of his opinion to highlighting, quoting, and analyzing in detail a litany of racist statements by DeWitt, in both his report and other venues, that provided substantial evidence that the military exclusion order “was the result of this erroneous assumption of racial guilt rather than bona fide military necessity.” Faced with this substantial body of evidence illustrating the racist motivations for the policy, Murphy had little difficulty concluding that the government’s exclusion order fell “into the ugly abyss of racism.”

By contrast, Black declined even to acknowledge the existence of any these statements, much less contemplate their significance and relevance. Here, too, there are disquieting similarities between Roberts’s opinion in Trump v. Hawaii and Black’s opinion in Korematsu. Roberts does not go quite as far as Black in ignoring evidence of animus and hostility altogether. Eventually, on page 32 of a 39-page opinion, Roberts does get around to acknowledging and providing a cursory summary of some of the statements by Trump and his advisers “casting doubt on the official objective of the Proclamation.”

This sanitized discussion, however, comes as an afterthought in Roberts’s opinion—recited for the purpose of responding to and refuting the plaintiffs’ claims, not as part of the factual discussion establishing the origins, chronology, and development of Trump’s three Muslim bans. As Sotomayor correctly observes, Roberts’s “highly abridged account does not tell even half the story” and greatly minimizes the evidence demonstrating that the Muslim ban “was motivated by hostility and animus toward the Muslim faith.” After blithely stating that the Muslim ban must be upheld if it is “plausibly related to the Government’s stated objective,” Roberts more or less phones it in for the rest of his analysis of the substantial evidence that Trump’s order is motivated by animus and hostility against Muslims—just as Black casually dismissed the “contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.”

Ultimately, Roberts’s emphatic but misleading disavowal of Korematsu functions mostly as a jurisprudential version of protesting that the Court “doesn’t have a racist bone in its body,” or of  trotting out the Court’s Japanese American friend to refute any contention that it might be validating racism. At the most obvious level, it affords Roberts and the other justices who validated Trump’s Muslim ban an opportunity to congratulate themselves and take a victory lap for denouncing Korematsu and to fish for favorable reactions to its decision. To a considerable extent, that effort has succeeded. News coverage of Roberts’s discussion of Korematsu has been largely favorable. The opinion’s discussion of Korematsu even seems to have caused some observers opposed to the Court’s ruling to pull their punches a bit in criticizing the decision, tempering their critiques with undeserved applause for Roberts’s denunciation of Korematsu.

At a deeper level, however, Roberts’s narrow and misleading characterization of Korematsu provides further evidence that for the Supreme Court’s conservative majority, the terrain on which constitutional equality issues legitimately arise is narrow, limited, and shrinking. Characterize Korematsu as purporting to expressly validate the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race,” and the Roberts Court will happily pat itself on the back for taking the utterly noncontroversial step of decisively repudiating that distorted description of the decision decades after the fact. (As Andrew Prokop reacted on Twitter in response to Roberts’s discussion, “Thanks?”) Characterize the case more accurately instead as one in which the Court failed to adequately grapple with the underlying racism of a policy that purports to rests on grounds other than racial discrimination, and the decision’s actual flaws and true implications become more clear.

Especially at a moment in which the Supreme Court’s conservative bloc has aggressively sought to render suspect the very acts of alleging discrimination and examining evidence in support of discrimination claims, for Roberts and his conservative majority to provide a fully accurate account of Korematsu v. United States and its flaws would have hit uncomfortably close to home. Instead, Roberts engaged in a cheap parlor trick: purporting to “overrule” a narrow, distorted version of Korematsu while simultaneously embracing and replicating that decision’s actual logic and reasoning in the course of his own decision-making. Far from being any cause for celebration, that sleight of hand instead should be regarded as the latest in a series of warning signs for anyone who cares about equality—not only in the context of the Muslim ban itself, but in the context of a wide range of other areas, such as voting rights and racial gerrymandering, in which Roberts and his conservative colleagues have made increasingly clear that they are happy to say one thing and do another.

Labor Unions, Draw Your Swords: Janus v. AFSCME and Future Labor Litigation

This week the Supreme Court struck down laws allowing public sector unions to collect fees from represented nonmembers. The Court’s brazen 5-4 decision in Janus v. AFSCME reverses forty-one years of precedent, invalidates fee-permitting statutes in twenty-two states, and disrupts thousands of employment contract provisions. In these ways Janus is extraordinary. In another it is not: Once again, a majority of the Court has utilized the First Amendment to undermine popularly-enacted economic regulations.

Janus rests on the theory that requiring public employees to pay a fee for the collective bargaining services of a union required by law to represent them is akin to forcing public employees to subsidize political speech. The Court rejected this same theory in Abood v. Detroit Board of Education—a 1977 decision Janus now overrules. In Abood, the Court prohibited unions from charging nonmembers for their political activities, such as lobbying and campaign contributions. But Abood allowed them to charge nonmembers a “fair share” fee for their collective bargaining and contract-related services because the states’ interests in labor peace and preventing free riders outweighed the First Amendment interests of nonmembers.

Since Abood, the Court has significantly enhanced free speech protections under the First Amendment and, more recently, explicitly questioned whether Abood’s balancing of competing interests was proper. Writing the majority opinion in Janus, Justice Alito resolved these misgivings. Despite the importance of stare decisis, Alito concluded that Abood must be overturned because all union subsidies in the public sector violate the First Amendment. Alito explained that in the public sector unions are engaged in political advocacy, even when they take positions on issues like salaries and pensions for government employees, because these issues also impact public matters, such as government allocations of public funds.

In a fiery dissent, Justice Kagan accused the Janus majority of “wielding” the First Amendment like a “sword” to slash through sensible legislation. Corporate-financed special interest groups have been the most aggressive with this legal maneuver—which involves repurposing an individual right, once thought to shield disfavored speakers from government suppression, into a deregulatory weapon. These groups, with help from an increasingly receptive Court, have dismantled economically burdensome regulations of securities, copyright, and campaign finance activities. And while analogizing a deregulatory movement to weaponry and physical assault may be melodramatic in some legal contexts, the comparison is especially pointed in labor law, which by design reflects a complicated balancing of individual and group rights.

Yet the very same balancing act that complicates labor relations is also what makes Janus different than the other First Amendment challenges to legislative policy that came before it. This is because, unlike other cases that weigh First Amendment rights against legislative interests, in Janus, there are constitutional interests on both sides. If, as Janus suggests, union advocacy within the context of collective bargaining is “of great public importance,” then don’t laws requiring unions to use their resources to advocate on behalf of nonmembers equally violate the First Amendment rights of union members?

Janus is a doctrinal outlier because it is the only case where the Court preserves the negative rights of objectors not to engage in an activity that is not itself also protected by the First Amendment. As Catherine Fisk has noted before, the right to refuse to salute the flag in West Virginia Board of Education v. Barnette existed because a flag salute is First Amendment speech. Likewise, the right to eschew association for expressive purposes in Roberts v. United States Jaycees was safeguarded because of the affirmative First Amendment right to associational expression.

Cites to Barnette, Roberts, Wooley v. Maynard, and all the repeat First Amendment players can be found throughout the Janus opinion. But none of these cases address union expressive activity as a constitutionally protected right. Janus recognizes that requiring public employees to provide financial support to a public union advocating for positions during collective bargaining is a “significant impingement on First Amendment rights” because the union’s advocacy has “powerful political and civic consequences.” But it does so, remarkably, without constitutionalizing the rights of unions or their members to engage in this kind of powerful, political, and consequential advocacy.

This omission is not all on the Court. Before Janus, labor proponents avoided First Amendment challenges to regulations of union activity, opting instead for philosophies that promoted compromise, workplace democracy, and the common good. But reasonable compromises are rarely the outcome when one side is wielding a sword. So now, after Janus, labor must find a new strategy more conductive to its political and economic goals. Given judicial receptivity, a litigation strategy premised on the First Amendment may be a good place to start. Asserting their own First Amendment rights and the rights of their members, unions should challenge the fair and free representation requirements and standards for nonmembers. But why stop there? Contest burdensome certification fees and recertification requirements that infringe on members exercising their rights to associational expression and advocacy through unions. Follow the cue from unions in Wisconsin and oppose statutory provisions, like Wisconsin’s Act 10, that arbitrarily restrict the collective bargaining rights of some public employees and not others as content-based restrictions on speech. And question the validity of common regulations of union expressive activity like those restricting boycotts, strikes, and picketing. By characterizing union collective bargaining activities in the public sector as political speech protected by the First Amendment, Janus v. AFSCME is giving unions a sword. Now what are unions going to do with it?

Religious Liberty For a Few: The Supreme Court’s Decision in Trump v. Hawaii

by Sirine Shebaya and Johnathan Smith

Yesterday, the U.S. Supreme Court affirmed the legality of President Trump’s “Muslim Ban.”  In so doing, the Court has made clear that the Constitution’s guarantees of religious liberty do not apply equally to all people.

In a 5-4 decision, a majority of the justices sided with the Trump Administration, concluding that the President’s third attempt at banning nationals from several Muslim-majority countries did not violate either the Immigration and Nationality Act (“INA”) or the Constitution’s Establishment Clause.  Chief Justice Roberts, writing for the Court, acknowledged that President Trump has a long history of anti-Muslim comments and statements.  But he quickly brushed those aside, observing that the issue before the Court was to evaluate “the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”  The Court went on to conclude that the challengers failed to provide sufficient evidence that the Muslim Ban is infected with impermissible religious bias, noting, among other things, that the President’s Proclamation does not mention religion and does not cover the entire global Muslim population.

Chief Justice Roberts’ prosaic description fails to account for the realities of the way in which the Muslim Ban was developed and implemented.  Donald Trump ran on a platform that centered on anti-Muslim bigotry and discrimination.  He has repeatedly called for a “total and complete shutdown of Muslims entering the United States,” proclaimed on a nationally televised program that “Islam hates us,” and has gone out of his way to support false, unsubstantiated, and stereotypical accounts of Muslims.  It is true that after courts struck down the first two versions of the policy, the Administration attempted to mask their true intentions by developing an interagency “worldwide review” process.  But that thin veneer of pretext does little to obscure the real intention, particularly given that the list of banned countries has remained remarkably consistent and focused most heavily on countries where a majority of the population is Muslim.

And as Justice Sotomayor makes clear in her powerful dissent, it is obvious to anyone who has been paying attention that the primary motivation behind this policy is—and always has been—anti-Muslim animus.

The Court’s decision is even more disappointing when considered in light of the justices’ handling of Masterpiece Cakeshop v. Colorado Civil Rights Commission just a few weeks ago.  There, the Court concluded that members of the Colorado Civil Rights Commission denied a Christian baker a fair hearing when they ruled that he discriminated against a same-sex couple by failing to bake them a wedding cake.  Specifically, the Court honed in on a few statements made by Commission members that it interpreted as expressing hostility towards the baker’s Christian faith.  Even though there was no evidence that the statements had any impact on the Commission’s overall handling of the matter, the Court nevertheless made clear that government officials have no business placing their thumbs on the scale in favor (or opposition) to religious beliefs.

Now we know that standard does not apply to all religions.  Even though the record of religious animus in Hawaii is overwhelming—and President Trump continues, with disturbing frequency, to demonize and vilify the faith of Islam—a majority of the justices failed to hold him accountable for his actions.  The message is as clear as it is depressing:  religious minorities cannot assume that they fall under the ambit of the protections enshrined in the First Amendment’s religion clauses.

In his concurring opinion, Justice Kennedy remarked:  “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”  Sadly, the Supreme Court failed to convey that message yesterday.  Rather, the majority opinion serves as yet another painful reminder that our Constitution’s most sacred and important protections remain out of reach from those who need them the most.

Sirine Shebaya is a senior staff attorney at Muslim Advocates. Johnathan Smith is the legal director at Muslim Advocates.

The Trouble with So-Called “Gang Databases”: No Refuge in the “Sanctuary”

I have been asked to testify in Immigration Court here in Boston several times in as many weeks on behalf of undocumented immigrant teenagers, all Hispanic and from El Salvador, who had been “verified” as gang members, purportedly belonging to either the 18th Street or MS-13 gangs. These teenagers had been “verified” as gang members in a “Gang Assessment Database” maintained by the Boston Regional Intelligence Center, aka the “BRIC,” a fusion center operated and maintained by the Boston police department (Full disclosure: I was a Boston police officer for 27 years).

All were in deportation proceedings in Immigration Court, hearings based in large part on their supposed “verified” gang membership. Immigration and Customs Enforcement (ICE) agents had determined that these young men were in fact dangerous gang members who warranted immediate removal from the United States.

I am no expert on gangs, gang membership, gang identifiers, or gang activities. But I do have expertise in the types of data and information that can be legally entered into criminal intelligence databases, such as the BRIC’s Gang Assessment Database, and it was for this reason that my testimony was sought in Immigration Court. The operation of Criminal Intelligence Systems, such as the BRIC’s Gang Assessment Database, are governed and regulated by federal law as embodied in what is known as 28 CFR Part 23. The Code of Federal Regulations (CFR) is essentially the codification of the rules and procedures for the administration of the federal government; they cover 50 areas and are published annually in the Federal Register. Interjurisdictional Intelligence Systems and Criminal Intelligence Systems, such as those maintained in fusion centers like the BRIC, are required by federal law to be 28 CFR Part 23 compliant. The Gang Assessment Database maintained by the BRIC is in large part non-compliant with 28 CFR Part 23 and is thus in violation of the applicable federal rules as contained in the regulation.

Information concerning an individual may be “collected and maintained” in a Criminal Intelligence Database, “only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” The regulation further clarifies and defines reasonable suspicion and “criminal predicate”:

Reasonable Suspicion or Criminal Predicate is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise.

Gang membership is “verified” by the BRIC using a point system that assigns “points” for various criteria that, when met, purport to attest to gang membership. When ten points are assigned in the BRIC system, the individual is “verified” as a gang member. While there is no agreed upon national standard that has been definitively established to determine gang membership (the DOJ provides guidance in this area), these point systems are commonly used by law enforcement agencies nationwide.

The problem is that many of the criteria that are used to “verify” gang membership do not meet the definition of reasonable suspicion or criminal predicate as defined in 28 CFR Part 23. As such, these “identifiers” should not be collected and maintained in a Criminal Intelligence Database such as the BRIC’s Gang Assessment Database. The teenagers who were subject to deportation in the hearings where I testified were “verified” for simply being seen in a photograph wearing a certain baseball hat, having a particular tattoo, or having a picture taken or being seen with another person who was a “verified” gang member. One was with a friend who was assaulted by other “known gang members” and given eight “points” in the database. Simply having a “contact” with a “known gang member” or being a “victim” of a “rival group” can get you verified as a gang member.

One of the primary issues of concern with gang databases is that they too often provide no foundation or support for the contentions and representations that the intelligence they collect is reliably indicative of gang activity, instead presenting the information as a priori determinative of gang membership. 28 CRF Part 23 requires that those collecting and maintaining information in the gang database are “responsible for establishing the existence of reasonable suspicion of criminal activity…through examination of supporting information submitted by a participating agency.” In all of the gang packets that I reviewed, that were prepared by ICE agents based on information that they received from the BRIC, there was little if any of the required “supporting information.” These gang packets are presented in Immigration Court as prima facie evidence of gang membership, and the Court, in making decisions regarding bond, asylum, and deportation, is too often relying on information that has not been substantiated and is both unreliable and untrustworthy.

Thus, the police present verification as a gang member as a fait accompli for simply wearing a particular type of hat or being seen with another individual who the police believe is in a gang or being “named in documents as a gang member,” (not sure what “documents,” but eight points) or “participation in publications” (whatever that means, eight points). In this way anyone, including me I suppose, can be “verified” as a gang member. This is particularly troubling because, owing to the current zeitgeist, the consequences of being perceived to be a gang member are substantial, and may include being removed from the country and being literally dropped into a perilous predicament with a potential for a grave and violent outcome.

Boston is a so-called “sanctuary city,” yet its police department is actively collaborating with ICE to facilitate the removal through deportation of those whom it may have erroneously identified as gang members, in what may be an “end run” around the sanctuary mission that the city publicly embraces. And this is hardly unique to Boston and its BRIC Gang Assessment Database; databases in New York, Chicago, and Los Angeles are similarly non-compliant. Nonetheless, this remains cause for concern if not alarm, given the current tenor regarding both documented and undocumented immigrants.

Thomas Nolan has been an Associate Professor in Criminal Justice at Boston University, the State University of New York at Plattsburgh, and Merrimack College. He was a Senior Policy Advisor at the Office of Civil Rights and Civil Liberties in the Department of Homeland Security in Washington, DC, and a 27-year veteran (and former lieutenant) with the city of Boston police department. www.thomasnolan.org

The Irony of Red Hen

by Gregg Ivers and Reuben Guttman

One of the most effective techniques of intimidation by Southern law enforcement during the civil rights era to shut down non-violent protests, pickets and demonstrations directed against either private businesses or government bodies was to use state and local “breach of peace” laws. Rather than acknowledge that protesters had a constitutional right to assemble and protest peacefully, all-white law enforcement agencies simply had to utter the words, “this is an unlawful assembly” before breaking up a protest. And who was going to challenge them? African American protesters had little recourse except to hope that newspaper and television reporters recorded these events and publicized them to the larger world. A generation later, we are left with memorable and often searing images of non-violent protesters carried off by police for doing nothing more than carrying signs, singing freedom songs or staging rallies that, if conducted by whites supporting racist laws, would never have drawn official interest.

In February 1963, the United States Supreme Court ruled in Edwards v. South Carolina that states could not use “breach of peace” laws to silence protesters who lawfully congregated in a traditional public forum to exercise their rights under the First Amendment. Edwards is not well-known; but it provided an essential constitutional foundation for civil rights protesters – all protesters, for that matter – to claim public space to assemble peaceably and demonstrate within the confines of the law. Compliance by Southern law enforcement was another matter, as the violent reaction against civil rights protests throughout the Deep South over the next several years would attest. But the right was there.

A few years later, in March 1966, several hundred African American residents of Port Gibson, Mississippi, located in Claiborne County, decided, with the support of the local National Association for the Advancement of Colored People (NAACP) office, to boycott white businesses in the area for their treatment of black customers. Over a four-year period, the boycott was relatively non-violent, although there were a couple of violent incidents, particularly after the assassination of Martin Luther King, Jr. in April 1968. Local white merchants seized upon reported incidents of “internal discipline” by the NAACP of local black citizens who violated the boycott to argue that the boycott was not protected First Amendment activity. The merchants obtained an injunction and were awarded significant monetary damages, a legal challenge to which was upheld by the Mississippi Supreme Court. After years of litigation, a unanimous United States Supreme Court, in NAACP v. Claiborne Hardware Co., reversed the lower court judgment, holding that the local boycott was protected by the First Amendment. Writing for Court, Justice John Paul Stevens, a Republican appointee, wrote that “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”

Thirty-six years later, the logic of Claiborne is once again relevant – but this time with an interesting and equally contemporary Trumpian twist.

On June 22, 2018, employees of The Red Hen, a well-established local restaurant in Lexington, Virginia, called owner Stephanie Wilkinson to inform her that Sarah Huckabee Sanders, the presidential press secretary, was dining with several companions. The employees, several of whom are gay, told Wilkinson that they were not comfortable with her presence there. They discussed the matter among themselves and decided they wanted her to leave; but would not take that course of action without informing their boss. Wilkinson accepted her staff’s decision and came down to the restaurant to handle the matter in person. Wilkinson approached the table and politely asked to speak to Sanders privately out of earshot of other customers and employees. After informing her of her employees’ position, Wilkinson asked Sanders to leave. By all accounts, Sanders accepted the decision without incident and left.

Rare is the occasion, even during contentious political times, when a restaurant patron is asked to leave because of her politics or her association with a national political figure. But these are not normal political times. Since taking office, the Trump administration has engaged in a relentless war of words and deeds again the LGBTQ community, with Sanders often the official conduit for the administration’s position. Moreover, Sanders has embraced the administration’s combative and outright disrespectful tone towards those constituencies that did not support her boss, engaging in sneering, condescending and downright rude behavior towards anyone who dares to challenge an administration decision or, more often, an inflammatory, inaccurate and frequently racist, homophobic or sexist tweet from the man she is officially employed to represent. Sanders’s consistent unprofessionalism is remarkable and almost without precedent. Not since President Richard Nixon’s press secretary, Ron Ziegler, took to the White House press office podium to lambast the media on a near-daily basis has a press secretary engaged in such consistently unprofessional behavior. And then there is the matter of the constant and unapologetic lying.

For us, Wilkinson’s decision to ask Sanders to leave is classic conduct protected by Claiborne, except this time the merchant is taking a peaceful stand against a customer. The restaurant business is a notoriously difficult one, yet The Red Hen has been in business for ten years. That doesn’t happen by gratuitously asking customers to leave because you don’t agree with their politics. And this customer was not asked to leave because of her race, sex or national origin. Sanders was asked to leave because, in the view of Red Hen employees and their boss, she is a public official who uses her position to promote bigotry against a class of lawfully protected individuals.

Naturally, the president responded as one would expect, tweeting on June 25th: “The Red Hen Restaurant should focus more on cleaning its filthy canopies, doors and windows (badly needs a paint job) rather than refusing to serve a fine person like Sarah Huckabee Sanders. I always had a rule, if a restaurant is dirty on the outside, it is dirty on the inside!”

Forget that a matter like this is not presidential business. And forget that his statement contains a number of “false statements” – Trumpese for a lie. Wilkinson’s restaurant is not “filthy” or dirty on the inside. Its most recent health code inspection reported no violations, whereas Trump-branded restaurants have accrued hundreds of them. There is even something more hypocritical about the Trump-Sanders victim narrative.

Just three weeks ago, the Trump administration celebrated the United States Supreme Court’s decision in Masterpiece Cake Shop v. Colorado Civil Rights Commission, which held – at least in a very limited and case specific opinion -- that a bakery owner was within his  rights not to make a cake for a gay couple because it violated his sincerely held religious beliefs. That decision built upon, in a slightly different way, the Court’s decision four years ago in Burwell v. Hobby Lobby, which held that owners of a for-profit business were not required to cover certain contraceptives for their female employees based on their sincerely held religious beliefs. Agree or not, these cases involved requests for a religious exemption to a law that applied to the general population.

The Red Hen flap – no pun intended – is not about whether a business owner can refuse service to a customer based on a religious objection. Wilkinson and her staff were familiar with Sanders’s statements defending public policy decisions hostile to the LGBTQ community – from banning transgender people from the military to supporting the Masterpiece Cakeshop owner to refusing to acknowledge Pride Week and almost everything else of import to gay men and women. Wilkinson’s decision was a political statement, just like the protesters in Claiborne Hardware. And. it was not tied to race, religion, gender or sexual orientation.

Restaurant owners have particular agency over who can patronize their restaurant for a number of reasons. They can ask patrons to leave because of loud and boisterous conduct; for inappropriate attire; for making inappropriate statements within earshot over other patrons; for rude behavior towards staff, and so on. Wilkinson, unlike the Masterpiece Cakeshop owner and his press secretary, did not have the collateral support of the president of the United States. And since taking office, the president has used his Twitter platform to make a number of injurious and false statements about business owners and employees in the private sector, calling for firings, referring to employees in the NFL as “sons of bitches” and encouraging people not to patronize private businesses – Amazon, for example.

Unfortunately, there is no reason to believe that the President will cease in his vindictive attacks on the private sector. And to the extent that even well-respected retail establishments respond through boycott, they can look back on prior Supreme Court precedent for protection.

Putting a Happy Face on an Unfortunate Decision

It is, to say the least, regrettable that the Court upheld the Muslim Ban, a policy apparently resting on racism and religious bigotry, with little factual justification, which has harmed many innocent people, and which has and will continue to diminish the standing of the United States in the world.  On the other hand, it is possible to read the decision in Trump v. Hawaii itself as a step forward in the Court’s history of restricted judicial review of racist and otherwise discriminatory immigration laws.  The Court seems to have drawn a line in the sand that will make President Trump—or at least his advisors—think twice before pursuing bigoted policies.

Importantly, the Court finally overruled Korematsu v. United States, which upheld the World War II exclusion of Japanese Americans from the West Coast, calling it “gravely wrong the day it was decided.” The implication of that action, as well as of the limited judicial review in which the Court engaged, is that the Court would not now uphold the racial and religious discrimination which was a part of our immigration and naturalization policy from 1790 until 1965. This discrimination included such statutes as the Naturalization Act of 1790, which restricted citizenship to “free white persons,” and the Chinese Exclusion Act of 1882 (which operated based on race, not nationality, citizenship, or national origin).  The Court upheld Chinese exclusion in such cases as its unanimous Chae Chan Ping v. United States, which recognized the power of Congress to find “the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security,” and expel them at its pleasure.

To be sure, the Court’s testing for a facially neutral and bona fide reason was limited.  However, the tone of the opinion clearly suggested that the kinds of rationales upheld in earlier cases would be unsatisfactory.  In the 1950s, Justice Frankfurter concluded that the Court must defer to Congress when its immigration policies were based on “racial theories,” anti-Semitism, anti-Catholicism, or xenophobia, “even though such determinations may be deemed to offend American traditions and may, as has been the case, jeopardize peace.”  It appears that it would have been insufficient for this Court to muster “evidence,” a la, say, Pat Buchanan, that could support a conclusion that Muslims were in fact undesirable, or that Christians were more assimilable or suited to U.S. society.  Justice Frankfurter’s understanding of the limits of judicial review is apparently no longer the law.

In addition, while the Court engaged in what it said was rational basis review, there was serious examination of the classification.  The Court, for example, noted that the ban applied to countries with less than 10% of the world’s Muslim population, and that all of the countries targeted by the ban had been deemed security threats by Congress or prior administrations.  In other rational basis cases, the Court has said that a classification would be upheld if any reasonably conceivable state of facts could support it.  That was not the majority’s approach here. There was some testing for pretext.

Nevertheless, at the end of the day, the Court upheld a policy with a disparate impact on Muslims, even though there was substantial evidence of bias on the part of the President.  Obviously, therefore, Trump v. Hawaii leaves room for the survival of facially neutral, invidiously motivated policies.  People inclined to discriminate have always had the opportunity to disguise their motives, a problem with a wide variety of causes independent of this case, not least of which are that our Constitution provides for minority rule, and that minority of the People elected a bigoted president.  But Trump v. Hawaii also creates a clear risk for leaders who pursue discriminatory immigration policies for political reasons. At some point, they will be invalidated.

Gabriel J. Chin is Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor of Law at the UC Davis School of Law.  He participated in the case as amicus curiae.