Oral Arguments Stories: New Yorker, Esquire, New York Magazine, The Daily Caller

Esquire: … out in the gallery, Karen Korematsu knew that the forces summoned up in the last political campaign differed not at all from the forces that sent her father to a camp, that fought him all the way through the legal system, and that finally apologized to him 45 years after the damage was done. And that case is still on the books.

“We came out after 9/11, when there were people actually citing my father’s case in favor of interning Muslim citizens,” she said, as rain pattered down on the marble steps beneath her feet. “We are here today because we know what can happen.”

DailyCaller.com: [Justice Kagan] wryly emphasized Francisco should imagine an “out-of-the-box president,” drawing laughter from the audience in the courtroom, which included two U.S. senators, famed playwright Lin Manuel Miranda, and Karen Korematsu, the daughter of a Japanese-American whose challenge to President Franklin Roosevelt’s internment policy reached the Supreme Court in 1944.

New Yorker: In the end, though, the imaginary Presidents in the oral arguments might be less thought-provoking than Trump’s own invocation of a real, historical President. “Take a look at what F.D.R. did many years ago, and he’s one of the most highly respected Presidents,” Trump said, on “Good Morning America” after first calling for a Muslim ban. “I mean, respected by most people. They named highways after him.” He was referring to Franklin Roosevelt’s executive order that laid the basis for the scandalous internment of Japanese-Americans during the Second World War. The Supreme Court can’t get enough reminders that, to its shame, it upheld that order, in the Korematsu decision. (The daughter of Fred Korematsu, the plaintiff in that case, was outside the Court during the arguments on Wednesday.)

Korematsu has never been formally overturned. Trump’s travel ban may well survive, too, judging from some of the comments made by Anthony Kennedy, who is often a swing vote. For example, Kennedy noted how detailed the security rationale in the travel ban was, and, when Katyal said that it was a problem that the ban had no sunset clause, Kennedy asked, “So you want the President to say, ‘I’m convinced that, in six months, we’re going to have a safe world?’ ” Even if the Justices allow the ban to go forward, it would be unconscionable for them not to take the opportunity, in their decisions, to address Korematsu, and to renounce it thoroughly. If they think that it is different from the travel ban, they should say why, in ways that serve to reject Trump’s assertion that the courts had no right to review the ban in the first place and to clarify the limits of a President’s ability to target certain groups in the name of security. Otherwise, that power, under future Presidents—and this one—will not just be hypothetical.

New York Magazine: … if history serves as a guide, the Supreme Court has found ways in the past to give the president a pass whenever he claims national security is at stake. As legal twists would have it, it fell to Katyal during the Obama administration to confess error on behalf of the Justice Department for its defense of shameful policies that resulted in the detention and internment of tens of thousands of Japanese-Americans during World War II. The circumstances surrounding the Korematsu case, in which the Supreme Court largely upheld those policies, didn’t come up during Wednesday’s hearing — a missed chance to revisit the specter of a case that looms large over the travel ban’s existence.

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