How the Supreme Court Replaced One Injustice With Another

.. During World War II, about 120,000 men, women and children of Japanese descent, including almost 40,000 foreign nationals living on the West Coast, were removed from their homes, forced to forfeit their possessions and then incarcerated on the basis of military orders authorized by the president.

.. The real reason for the government’s deplorable treatment of Japanese Americans was not acts of espionage but rather a baseless perception of disloyalty grounded in racial stereotypes

.. When President Trump used questionable evidence to issue executive orders last year banning immigration from predominantly Muslim countries, I heard the same kind of stereotypes that targeted the Japanese-Americans in World War II being used against Muslims.

.. we implored the court to repudiate its decisions in those cases while affirming their greater legacy: Blind deference to the executive branch, even in areas in which the president must wield wide discretion, is incompatible with the protection of fundamental freedoms.

.. But the court’s repudiation of the Korematsu decision tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to that infamous decision. In fact, the Supreme Court indicated that the reason it addressed Korematsu was because the dissenting justices noted the “stark parallels between the reasoning of” the two cases.

.. the Supreme Court seemed to repeat the same bad logic of the 1940s decision by rubber stamping the Trump administration’s bald assertions that the “immigration travel ban” is justified by national security.

.. As Justice Sonia Sotomayor explained in her dissent

.. By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

.. The court’s decision replaced one injustice with another nearly 75 years later.

Supreme Court justices are speaking up more because they’re not afraid to be partisan

Many other forms of judicial behavior also changed in the mid-1990s. Starting in 1995, the time that justices spent speaking during oral argument skyrocketed, leaving the advocates with far less of the 60-minute argument to make their cases.

.. The justices as a group have taken an additional 13 minutes of argument after 1995 than before, an increase of 22 percent.

.. What caused these trends?

.. Rather, behavior at the Supreme Court changed in response to a radical increase in political polarization.

.. The 1994 Republican Revolution, led by Rep. Newt Gingrich (Ga.), coincided with a rapid rise in polarization. Ideological distance between the two parties grew, and the number of moderates in Congress plummeted. Norms of bipartisan lawmaking began to erode, and eventually the Republican majority impeached a popular Democratic president.

.. During this period, the justices’ questions to litigants barely increased, but nonquestions — occasions when the justices made statements, rebutted their colleagues and presented arguments — rose precipitously. Since 1995, the justices have made comments almost three times as often as they have asked questions

.. Together, the justices have made more than 100 additional comments per case since 1995. Rather than inviting advocates to explain their positions, the justices are often making the cases themselves.

.. The link with polarization is clear: The justices now disproportionately disrupt the side that they ultimately rule against.

.. The justices generally direct their true questions to the side they support and their comments to the side they oppose. The difference, again, increased massively since 1995.

.. Justices also began more frequently to supply answers through leading questions and to step in with deflection and rebuttal. At oral argument in Dean v. United States last year, after Justice Sonia Sotomayor repeatedly came to the aid of a struggling advocate, he mistook Sotomayor for Justice Elena Kagan. “She’s Justice Sotomayor,” Kagan told him. “She was the one helping you.” It was an unusually frank recognition of what oral arguments have become: a chance for the justices to support their side over the other one.