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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, June 26, 2018

SCOTUS: Korematsu Overruled But Spirit Lives On

Ugh. Justice Breyer dissented from the bench twice today and Sotomayor joined him on the second. 5-4 in both cases, travel ban (Roberts; Breyer/Kagan on more limited grounds but if necessary agreed with basics of the stronger dissent) and crisis pregnancy disclosures (Thomas v. Breyer). Korematsu was explicitly overruled, but by upholding the travel ban, its spirit lives (animus handwaved) on.  We are left to being glad past court action watered down the ban and the test applied by the majority could have been worse.

There was a compelling need for that CA law too. The results are especially bad on principle -- Trump is emboldened and treating anti-abortion differently for 1A purposes continues. Unlike during the Bush years, Kennedy in a separate concurrence relies on Republican good judgment. He's a stand-up comedian now. Also, he is appalled at the California disclosure law, while not caring about numerous slanted anti-choice laws much harsher.  People have noted that he had not joined one 5-4 liberal decision this term and is showing signs of being ready to retire. 

BTW, there is a sort of "to be continued" nature in both cases. The lower court has a chance, e.g., to uphold the California law on remand. Not likely, but maybe in part; then the state can tweak the law. This being Democrat controlled California. The travel ban case might also come back, especially as applied. But, "Trump wins" matters here a f-ing lot. And, the Supreme Court failed today. Now it is for us. And, further litigation!

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