"A Wisconsin Supreme Court justice on Tuesday invoked the internment of Japanese-Americans during World War II during oral arguments for a challenge to the state's controversial stay-at-home order...."

"The Wisconsin Legislature filed a lawsuit last month in an attempt to reopen the state and block the extension of the stay-at-home order issued by state health officials to slow the spread of the coronavirus. 'I'll direct your attention to another time in history, in the Korematsu decision, where the [U.S. Supreme Court] said the need for action was great and time was short and that justified, and I'm quoting, 'assembling together and placing under guard all those of Japanese ancestry' in assembly centers during World War II,' said [Justice Rebecca] Bradley.... 'Could the [Department of Health Services] secretary under this broad delegation of legislative power or legislative-like power order people out of their homes into centers where are they are properly social distanced in order to combat the pandemic?... The point of my question is what are the limits, constitutional or statutory? There have to be some, don't there, counsel?... My question for you is where in the Constitution did the people of Wisconsin confer authority on a single unelected Cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don't comply with no input from the legislature without the consent of the people? Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work?'"

CNN reports.

MEANWHILE: A Southern District of New York judge un-cancelled the New York primary, the NYT reports. Democratic members of the State’s Board of Elections made the decision to cancel the primary, and the challenge was brought by Bernie Sanders and Andrew Yang.

“If all but one of the presidential candidates are removed from the ballot and the primary is not held, Delegate Plaintiffs will be deprived of the opportunity to compete for delegate slots and shape the course of events at the Convention, and voters will lose the chance to express their support for delegates who share their views, [U.S. District Judge Analisa Torres wrote]. “The loss of these First Amendment rights is a heavy hardship."

Torres was appointed by Obama.

Trump wins the travel ban case.

Here's the PDF of the Supreme Court case, issued just now.

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

From the Roberts opinion:

Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the Presi- dent with authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks....

By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language....

Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere....

In section IV of the opinion the Court looks at"the claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims." First, the Court finds standing based on the "the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country." Looking at the substantive merits, the question is whether "singling out Muslims for disfavored treatment" violates the Establishment Clause."

It's a good day to think about Fred Korematsu.

Google reminds us — not because of fear-of-dangerous-outsiders doings over the weekend — but because the man was born 100 years ago today. I presume this Google doodle was in the works before the election and would have run today if Hillary Clinton had been elected and thrown open the doors to Middle Eastern refugees.

Or... wait. What would Hillary Clinton have done? Remember when Donald Trump said Hillary Clinton "would bring in 620,000 refugees in her first term, alone, with no effective way to screen or vet them"? That was on September 20th. I'm reading that quote at Politifact, which rates Trump's statement FALSE.

But Hillary Clinton didn't throw it in our face that she was going to block entry into the country and subject newcomers to extreme vetting. That's what Trump did. Hillary had the kind of nuanced position that allowed you to think — if you liked her — that she'd have a big heart toward the suffering and simultaneously protect us from terrorists or — if you didn't like her — that she had no plan and no nerve to stop the influx of masses of people, some of whom hate the American system and want to kill us.

Not enough people liked her, the system we love made Donald Trump our President, and now he is shocking the people who didn't like him by doing what he said in plain language he was going to do.

But many years ago, a President who is revered by the kind of people who like Hillary Clinton issued an Executive Order excluding all persons of Japanese ancestry from the West Coast.



The Democratic Party's all-time favorite President, Franklin D. Roosevelt, decided to take action against all persons of Japanese descent because "the successful prosecution of the war requires every possible protection against espionage and against sabotage."

Fred Korematsu stayed where he was, in Oakland, California, where he was born. Soon enough, he got arrested:

Shortly after Korematsu's arrest, Ernest Besig, the director of the American Civil Liberties Union in northern California, asked him whether he would be willing to use his case to test the legality of the Japanese American internment. Korematsu agreed, and was assigned civil rights attorney Wayne M. Collins. The American Civil Liberties Union in fact argued for Ernest Besig not to fight Korematsu’s case, since many high-ranking members of the ACLU were close to Franklin Roosevelt, and the ACLU didn’t want to be perceived badly in time of war. Besig decided to take Korematsu's case in spite of this....

The ACLU — which is in the news today as it fights Trump's executive order — fought for Korematsu and ultimately lost in the Supreme Court. "Ultimately" is not the right word, because you could say that in later years academic and public opinion shifted strongly in his favor, and with enough distance from World War II, we looked with disgust at what FDR arrogation of power and the Supreme Court feeble response. Korematsu ultimately won. He's a hero of history, celebrated in a Google doodle on the 100th anniversary of his birth.

But that's not "ultimately" either. American history rolls on.

Day 2 of the Roberts hearings.

I'm getting a late start, but I will persevere, beginning at the beginning, with the help of my TiVo.

Arlen Specter starts off the questioning, asking about stare decisis in general and Roe v. Wade in particular. Roberts sticks to the general and avoids the particular. Specter pushes his term "super-stare decisis" for Roe and whips out a gigantic poster listing the 38 cases that "reaffirmed" Roe v. Wade and asks if Roberts would think "Roe might be a super-duper-precedent." Roberts emphasizes that it is Casey that really matters, because that is the case where the Court addressed Roe and stare decisis and genuinely reaffirmed it. The other cases, I add, didn't so much "re-affirm" as simply accept and apply.

As noted in an earlier post today, Roberts states that he recognizes the existence of a constitutional right of privacy, but he frames his answer in a way that should appeal to conservatives as he stresses the constitutional clauses that express privacy rights. As to the rights in the penumbra, he says nothing. Instead of pursuing Roberts about that, Specter tries to get him to say Roe is a locked-in precedent. Of course, he does not.

Asked about the "notion of a Living Constitution," Roberts makes the seemingly unRehnquistian statement: "I agree that the tradition of liberty is a living thing." I say "seemingly," because it is well known that Rehnquist (like Scalia and many conservatives) rejected the notion that the Constitution changes to keep up with the times, but Roberts didn't say that it did. He said that "tradition" is a living thing. Whether the ongoing, living tradition of liberty makes its way into the interpretation of constitutional clauses containing the word "liberty" is another question. If Specter were sharper, he would have done a follow-up question.

Patrick Leahy asks a series of questions about separation of powers. "Isn't this hornbook law?" he asks when Roberts can't answer a difficult question about whether Congress can vote to stop a war. Leahy seems peeved that the answer isn't an obvious consequence of the power to declare war. Roberts handles these questions well, even though Leahy frequently interrupts him.

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing. He blurs them into the same category as no injury at all. Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about. Leahy mumbles his way into another interruption talking about — what? — tennis star? Oh, Kenneth Starr. Oh, lord, I wish Leahy's turn was up!

Orrin Hatch lays out the various methodologies of constitutional interpretation, taking categories from a Cass Sunstein book. Roberts doesn't like the labels and calls himself a "modest judge." He goes on to speak comfortably and fluently about how judges ought to behave, and it makes me think that Hatch lobbed him a nice nerf ball. The Hatch questioning makes a lovely resting point for Roberts — and yet he's saying a lot of basic things that are useful for people to hear. "It is emphatically the province and duty of the judicial department to say what the law is" — I try to say that at least once a week myself.

Roberts expresses confidence in the ability of judges to draw difficult lines. There is a difference between "making the law" and "finding the law," and judges know when they've crossed the line dividing the legislative from the judicial, he says. He thinks some judges go too far deferring to the legislature on the theory that they can't draw that line and can't say what the limit on Congress's power is, but deference to the legislature is also important, he elegantly adds.

Ted Kennedy invokes Katrina to bring up his themes of poverty and inequality. He outlines the history of civil rights cases and laws and asks Roberts to state that the progress that has been made is "irreversible." Kennedy becomes extremely antagonistic to Roberts over various issues — you can refer to the transcript for the details — interrupting Roberts repeatedly and looking quite angry. Several times, Arlen Specter has to tell Kennedy to let Roberts finish. At one point, when Roberts is just beginning an answer, Kennedy seems to snap "Roberts" at him, with no "Judge" or "Mr." in front of the name, and we rewind several times to try to figure out if Kennedy was indeed that rude. I still don't know, due to Kennedy's irritating garbling. Kennedy might have some good points to get out, but his anger and rudeness thoroughly undercut his presentation.

Chuck Grassley reads some legal material in a too-loud voice and asks Roberts to opine on it. The exchange with Grassley is very similar to the one with Hatch. Courts decide cases according to the law, you know. I'm trying to resist hitting the fast-forward button.

I succumb to temptation and fast-forward a bit. I stop at a point where I see Roberts' wife yawning. First laugh of the day, I think.

Joe Biden begins by saying "Hey, Judge. How are ya?" Then, "Look, Judge, uh, I'm gonna try to cut through some stuff if I can." What are the chances that Roberts is fooled into thinking he's facing an amiable, jovial pal? Biden goes on at length playing with yesterday's baseball metaphor and really gets on my nerves. When will he get to a question? Finally, he gets to the question whether Roberts thinks there is a right of privacy in the Fourteenth Amendment. Good! Roberts: "I do, Senator." But he can't extract much detail after that, as the two men get bogged down in how much Justice Ginsburg revealed when she endured her Senate hearings.

C-Span breaks away for its ritual of the opening of the House of Representatives, and Biden is ousted by those inconsequential 5 minute speeches. What an indignity! So, I must fast-forward.

It's time for Herb Kohl. Kohl gets Roberts to say that he believes in the right of privacy articulated in Griswold, as later framed in terms of substantive due process. That is to say, he doesn't endorse the notion of rights in the penumbra of the Constitutional clauses, as stated in the case. Roberts puts the right into the due process clause, as later cases did. But how big is this privacy right? Roberts will only say that it covers at least what Griswold spoke about — married persons' right to use contraceptives. The reason he would talk about that but not abortion is that he's sure that there would never be another case on that subject. That's a neatly framed position! It stops those who would try to destroy him for not believing in the right, but it commits him to nothing that he might actually decide.

Kohl is a mellow questioner.
Mike DeWine raises some interesting issues about FISA courts and then free speech. He doesn't so much seem to be testing John Roberts as publicizing legal issues of note. Now he's getting to a case I'm especially interested in, Garrett, which one of the Senators yesterday misrepresented as finding the Americans With Disabilities Act unconstitutional. (The Court merely found part of act not to be supported by the Fourteenth Amendment power, which meant that Congress could not abrogate state sovereign immunity. To put it simply, that limits plaintiffs to prospective relief when the defendant is one of the states.) DeWine's question is about judicial deference to congressional factfinding. The problem in Garrett was that Congress needed to find not just that persons with disabilities had suffered discrimination, but that their Fourteenth Amendment rights had been violated. There is a big discrepancy between these two things, however, because this kind of discrimination only needs to pass a minimal scrutiny test not to violate the Equal Protection Clause. So it's not really "factfinding" that was at stake in Garrett, but legal analysis about what rights are, which is the approprate role of the courts. But what Roberts talks about is how later cases — Hibbs and Lane — have been more deferential to Congress and how the the law in this area is still evolving. Basically, he is distancing himself from Garrett, which many people find distinctly unsympathetic. Roberts does not make any effort to explain the actual legal issue in Garrett. I'm sure that was a smart move, actually, rather than to try to explain the legal point I just did. No one would appreciate it.

Dianne Feinstein asks about several quotes that seem to reflect insufficient concern about women's rights. When he explains that the crack about encouraging homemakers to become lawyers was a joke, she chides him about his tone. Why isn't he modest and humble all the time? God forbid anyone should ever have a light moment and try to get on the Court. She moves on to ask about the Commerce Clause. He calls attention to the recent Raich case, emphasizing how broad the power the Court has recognized is and how minor Lopez and Morrison were. Feinstein brings up the separation of church and state and makes the blatantly untrue assertion that there is more divisiveness among religious groups now than ever before in our history. She tries to get him to state a belief in "the absolute separation of church and state." Of course, he doesn't. He says he doesn't know what the concept means, indicating that he sees Establishment Clause questions as complex, making me think he'll continue the trend of cutting the cases down the middle and offering up no clear answers.

Hey, it's grueling listening through all of this. It must be hard on John Roberts. It's just weird to have to sit there and be grilled all day long. Ah, but he'll have to work long and hard on the Court. Why not test his stamina?

Jeff Sessions. I'm skipping this one. Sorry.

Russ Feingold. First question: Why not televise the Court's arguments? Please say yes! Roberts talks way too much here, for some reason. Maybe he's trying to run out Feingold's time. Second question: How did September 11th affect your thinking about the law? Again, he gets weirdly chatty, telling the story of how he heard about the attacks unusually late, which was interesting but utterly irrelevant. Again, I'm thinking he's trying to eat up Feingold's time. Really strange! He hasn't done this to any of the other questioners. Feingold pushes him to focus on the question of undervaluing rights during wartime. This part is productive. Roberts is fairly noncommittal, but shows a somber concern about rights, as, of course, he must. He flatly rejects Korematsu.

Lindsey Graham wants to talk to Roberts "about life." He circles around a bit and hits on the question: what was Rehnquist's legacy? Roberts' answer is too generic for Graham, so Graham blurts out what he cares about: you're going to be like Rehnquist, aren't you? He follows up by asking what Bush meant by introducing him as a "strict constructionist" and then what is meant by the Reagan Revolution. Graham makes no secret of his goal of establishing that Roberts is conservative. Then he blasts all the Democrats in the room for thinking Bush would or should do anything other than nominate a conservative. Moving to particular substantive questions, he throws out the best-phrased question of the day: "I think it stinks that somebody can burn the flag, and that's called speech. Whaddya think about that?" Another Grahamism (about the ACLU): "In the conservative world, how does that rank on the food chain?" I'm amused again, but what is Roberts supposed to say about that? Graham rants about Justice Ginsburg, who, among other things, wants to do away with Mother's Day and Father's Day. I think I hear a gasp from the audience. You know, Graham is amusing me — more than anyone else today — but I think his tone is a bit clownish for the occasion. Still, he works his way to the bottom line deftly. The Republicans voted for Ginsburg, though she was clearly liberal: "They deferred to President Clinton because he won the election."

Sitting behind Roberts are three women (one of whom is his wife) dressed in neat, pastel colored suits. All have tasteful jewelry, sleekly nyloned legs, and the absolute obligation to sit still on stiff chairs. I'm starting to feel really sorry for them!

Uh-oh. It's Schumer. He says, "So you will be Chief Justice." Okaaaay. If Schumer's saying that, then can we all just please go home? Schumer admits to being "pleasantly surprised" by some of his answers. He sounds bored by his own disquisition. The Constitution is supported by "three legs"? I expected Schumer to be more of an attack dog. But he knows this is pointless. The cameras pick up Leahy and Specter, who seem to be finding this all very tedious. Or am I projecting? It's 10:43 here now and I've been trying to get through this since 2:30. Schumer introduces the topic of Wickard v. Filburn, then goes "ummm," in a tone that — to me — says, oh f**k, who's going to care about Wickard v. Filburn?

John Cornyn. Sorry, I'm skipping this one too. I expect him to support Roberts, so nothing much can happen here.

Dick Durbin is blabbing about Justice Blackmun, who, according to the Dictionary of Received Ideas, stands for the infusion of human emotion into judicial decisionmaking. One must quote the phrase "Poor Joshua!"

My C-Span recording shifts over to covering some vote on the House floor, where it stays until the end. So I've won a reprieve! There's nothing left for me to TiVo-blog. So there will be no Sam Brownback for me. (I don't care. He was boring.) And no Tom Coburn. No Cryin' Tom. Damn! Not really. I've had enough. I can't believe these characters are going to dribble on for another day.

I wonder what John Roberts will do tonight. I suppose he has to spend the whole evening going over the details of today's performance with his various advisors. But I'd like to think he didn't. I'd like to think he went home and had a nice dinner and a glass of wine with his wife, spent the evening playing Uno with his kids, went to bed early, and is now sleeping soundly. Dreaming — of what? Gloriously striped robes.

"I didn't feel guilty because I didn't do anything wrong."

Fred Korematsu died this week, but his name is permanently enshrined in constitutional law. He was one of the hardy souls who resist government action and produce the cases that test the limits of government power. He resisted the order to remove persons of Japanese ancestry from the west coast during WWII. He wanted to be left alone, to continue living and working where he was, and to marry the woman he loved, an Italian-American.

"I didn't feel guilty because I didn't do anything wrong," he told The New York Times four decades later. "Every day in school, we said the pledge to the flag, 'with liberty and justice for all,' and I believed all that. I was an American citizen, and I had as many rights as anyone else."

The oral argument in the Guantanamo detainees case. You can listen to the whole oral argument here, but it's not very edifying. Retired Judge John Gibbons, arguing for the detainees, stumbles along, and the Justices seem to hold back from pushing a fellow judge too much. At one point near the end, Gibbons seems to be groping to find something else to say, then says there seemed to be a question Justice Breyer asked a while back that he might not have answered, but he's forgotten what it is. Justice Breyer, perhaps only because time has almost run out, says he’ll take it up with the Solicitor General. Gibbons did hit upon some good lines, and these will be found in the press reports, but there was a woeful lack of eloquence overall.

The SG, Ted Olson, has a sonorous voice, but his argument was uninspired. He responded to key questions by noting for the third or fourth time the absence of statutory language and “the line that this Court drew” in an old case. “But why is it a good line?” Justice Souter burst out. I don't think Olson ever conveyed a strong reason to stand back so far in deference to the President. You can say "The United States is at war"--Olson's excellent opening line--but that can't mean: so anything goes. The question is how far back to stand, and you ought to have good reasons for the degree of deference you're asking for.

Justice Scalia actively picked up the slack. (Listen to Nina Totenberg's summary with great clips from the oral argument here.) His argument is all about the lack of judicial capacity to draw lines in this area and the lack of need for a judicial check on the Executive because the political process can respond. That's no help if you're an innocent detainee and the American public is willing to ignore you. But in Scalia's view, the courts do not sit to right all injustices. The fate of some individuals can be left in the hands of the Commander in Chief--which, of course, is inevitably true in war to some extent. Everyone's real question is: to what extent? Scalia is likely to say: if the detainees are not American citizens and are not on American territory, we should leave it to the President to determine how similar or different they are from persons detained on the battlefield, because it will be too hard for the courts to design the necessary legal structure to deal with this area properly:

We have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts?

Breyer took another tack, and ribbed Scalia for saying "reticulated." He asked Olson whether the Court might not help him in a different way, by finding jurisdiction, reaching the merits, and then "shaping" the substantive law so that there is no significant limit on the Executive.

So the Court might find jurisdiction, probably because the United States controls everything in the rented space that is Guantanamo Bay--as Gibbons noted, a letter with a stamp with Fidel Castro's picture on it would not get delivered, and we protect the Cuban iguana. But that will just mean that the federal court on habeas will reach the merits of the claim, and it is likely that very little will be needed to satisfy the courts that no relief is warranted. Deference to the Executive will be accomplished by articulating extremely narrow or nearly nonexistent rights--or no rights at all.

Breyer might be right that the Executive would benefit from this approach. His opponents could no longer bemoan the large area of unchecked power and the neat trick of putting everyone in Guantanamo, but power could remain virtually completely unchecked by courts, just unchecked in a way that makes it difficult to criticize as unchecked. If that's true, maybe those who worry about the detainees ought to reconsider the appeal of Scalia's position. If the courts forthrightly say, we will have nothing to do with these matters, people cannot soothe themselves with the hope (the futile hope) of a judicial check and may still see the need to push the Executive (or Congress) to behave in a just way toward the detainees.

This is of course an old argument, and I cite law types to Felix Frankfurter's opinion in Baker v. Carr and Robert Jackson's opinion in Korematsu.