It wouldn’t be shocking to many on the left to learn, after the election of 2016, that the Supreme Court would need to decide a “Korematsu 3” during Trump’s presidency; what they wouldn’t be able to guess is that it occured based on the actions of the left in the worst U.S pandemic in the last 100 years.
Korematsu v. United States was the case that, in effect, permitted Japanese internment during Eorld War II in the U.S. The Supreme Court, at the time, understood that their decision to uphold the program’s constitutionality had the potential to pervert future readings of the Constitution, but deemed the risk of a Japanese attack too great to ignore.
Justice Hugo Black, writing for the majority wrote:
Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
To the court’s credit, the original ruling was clear that it should not be used in future cases. To the court’s discredit, the Korematsu decision was used as justification in one of Justice Jackson’s opinions only 5 years later.
What does Korematsu have to do with the situation the U.S finds itself in now? Many state and local governments have issued “shelter in place” orders as a result of the COVID-19 epidemic. For some localities, the need appears obvious and can be tied to a specific number of cases and forcastable public risk. Seattle, for instance, saw an early and imminent risk of outbreak when first calling for quarantine measures.
When other cities and states followed suit, it wasn’t always as obvious that the order protected against an imminent threat. Many municipalities now under state-wide shelter-in-place laws, have no confirmed incidences of COVID-19 in their communities. Should it be legal for state governments to shutter their businesses, close their community centers, and halt daily life because of an abstract, so-far-unrealized threat?
Many doctors think so. Lessons from other countries seem to reinforce the effectiveness of a quarantine; however, I expect a legal challenge to state quarantine before the pandemic is over. The shelter-in-place mandates are too broad, too economically damaging, and are attached to no exit criteria.
When these laws are challenged, what will the Supreme Court rely on? Korematsu?
**To provide some hope to our hypothetical character at the beginning of the post, Korematsu did come up during the Trump presidency in the exact way she anticipated. In a time where many fear the degradation of minority libraries, the U.S Supreme Court condemned Korematsu in 2018 to demonstrate societal progress.
Polly Wanna Math 