Amir Ali on Take Care is taking care to remind Chief Justice Roberts of how one bad decision can define a court:
In the short, five-year period that Harlan Fiske Stone presided as Chief Justice, the Supreme Court contributed several decisions that continue to shape the judiciary and American life. For instance, Stone himself authored International Shoe Co. v. Washington, a seminal decision known to every first-year law student and which judges still apply every day to determine which people or corporations they have jurisdiction over. Yet, today, no one could feel secure discussing the Stone Court without acknowledging its deepest mistake, Korematsu v. United States, in which it acquiesced to President Roosevelt’s internment of tens of thousands of Japanese Americans.
And thus, concerning the travel ban argued yesterday at the Court:
We also know this is a similar evil because the President told us so. When Trump was asked how he could justify banning Muslims from the U.S., he repeatedly and openly cited the internment of Japanese Americans with approval. “What I’m doing is no different than F.D.R.’s solution for Germans, Italians, Japanese, many years ago,” he said.
All of this should make clear that it’s not President Trump’s legacy at stake. Regardless of what the Supreme Court says, everyone knows what President Trump stands for—if he has been one thing, it’s transparent.
It’s the legacy of the Robert’s Court on the line. The Stone, Fuller, and Taney Courts all should have known they were in the wrong at the time they decided their respective failures. But the Roberts Court has perhaps the clearest warning of any—the President’s own invocation of decisions that are already viewed as the Supreme Court’s darkest.
If the Roberts Court acquiesces, history will remember it—perhaps over all else.
Amir may be stretching a point, but nevertheless I think his focus on Chief Justice Roberts’ concern for legacy may turn out to be the key if the Court rules against the travel ban.
