Justice  /  Comparison

Pretending Not to Discriminate in the Name of National Security

America has always discriminated in the name of national security. It’s just gotten better at pretending it’s not.
National Archives and Records Administration

This week’s Supreme Court decision to uphold the Trump administration’s travel ban, in Trump v. Hawaii, hinges on a convenient and long-standing but faulty claim: the idea that the pursuit of national security can easily be separated from racial and religious prejudice. The court’s five conservative members said the ban wasn’t about prejudice because it was “facially neutral,” and that it was, instead, about the president’s legitimate exercise of his powers to defend the United States through immigration controls.

The problem is that claims of national security and forms of racial and religious discrimination have always been thoroughly enmeshed. Indeed, they’re inseparable: All national ideologies have been shaped by social hierarchies, which inform their sense of what—and who—constitutes a threat. The maneuver to separate security and prejudice only works if the relationship is deliberately obscured and disavowed.

It’s telling that the clashing opinions of Chief Justice John Roberts, writing for the majority, and Justice Sonia Sotomayor, in her dissent, each pivoted around the same dichotomy. For Roberts, the case was about security; for Sotomayor, it was about discrimination.

These issues led the justices to revisit 1940s-era struggles over racism, war, and national defense. In her dissent, Sotomayor spoke of “stark parallels” between the majority’s reasoning in Trump v. Hawaii and the Korematsu v. United States ruling of 1944, which upheld the mass removal of Japanese Americans during World War II. In both, an “ill-defined national security threat” had been used to justify “an exclusionary policy of sweeping proportion” against a disfavored group.

Roberts disagreed. It was “wholly inapt” to liken Japanese removal, a “morally repugnant order,” to what he called a “facially neutral policy denying certain foreign nationals the privilege of admission.” (The Trump administration had, in an unsubtle bid for facial neutrality, dropped Iraq and Sudan from the ban, added Chad, North Korea, and Venezuela, and on paper, anyway, provided for individual visa waivers.) Roberts tried to distance his opinion in the travel ban case even further from Japanese removal by overturning Korematsu: The earlier decision was “gravely wrong the day it was decided,” he wrote, having been “overruled in the court of history.”

Ironically, Roberts’ claim that discrimination had no legally salient role in the travel ban has precedent: Justice Hugo Black’s 1944 majority opinion in defense of Japanese removal, in Korematsu.

Like Roberts on the travel ban, Black contended Japanese removal hadn’t been about racism.