In an historic move, the families of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu — the three men behind three landmark Supreme Court cases that challenged the constitutionality of Japanese American incarceration (JACL’s Power of Words) — filed a joint amicus brief to the Supreme Court yesterday paralleling President Donald Trump’s Muslim ban with the forcible imprisonment of Japanese Americans in camps during World War II.
In 1942, Gordon Hirabayashi and Minoru Yasui filed separate Supreme Court cases challenging the constitutionality of a federally-imposed curfew on Japanese Americans, a precursor to removal orders that led to the World War II incarceration of Japanese American citizens. That same year, Fred Korematsu was arrested after he refused to report for removal and relocation orders, and his appeal of that arrest formed the basis of his Supreme Court challenge of Executive Order 9066. These three cases — along with the Ex Parte Endo decision — form the bulk of the Supreme Court case history on federal targeting of specific racial or ethnic minority groups under the auspices of national security.
One need not try too hard to see the relevance of this case history on today’s fight to stop Trump’s attempt Muslim travel ban.
In a ruling handed down this morning, the US Supreme Court unanimously sided with Asian American rock band “The Slants” against the U.S. Patent and Trademark Office. The Slants had sought to register their band’s name as a trademark, but was denied the mark under guidelines outlined in the 1946 Lanham Act, which prohibits the registration of any mark that might be deemed offensive or disparaging.
The Slants took issue with the US Patent and Trademark Office’s ruling, saying that their band name was not offensive, and was instead an effort to reclaim a racial or ethnic slur to empower the Asian American community.
However, The Slants’ legal battle to challenge the Lanham Act’s disparagement clause is of particular political relevance, as the clause also represents a significant legal basis for the Native American community’s protest of the “Washington Redskins”‘ name and trademark.
Advancing Justice – Los Angeles (AAAJ-LA) held a press conference moments ago to announce that lawyers with the group will represent two Asian American & Pacific Islander (AAPI) high school students who wish to present their support of race-conscious affirmative action admission before the Supreme Court if and when the justices hear arguments next year about an anti-affirmative action lawsuit filed against the school by Edward Blum, the architect behind Abigail Fisher’s earlier failed attempts to dismantle affirmative action before the Court.
The two AAPI high school students represented by AAAJ-LA are current applicants to Harvard University, and both believe that race-conscious affirmative action is beneficial; AAAJ-LA filed paperwork yesterday to help the students join an existing group of diverse students who will have “amicus plus” status to present their support for affirmative action in a pending anti-affirmative action case, Students for Fair Admissions, Inc v. President and Fellows of Harvard College.
Supreme Court Justice Samuel Alito begins his dissenting opinion to Fisher v. University of Texas by pronouncing that “Something strange has happened since our prior decision on this case.” He wonders how the University of Texas (UT) could emerge victorious from its contest with Abigail Fisher over the constitutionality of its race-conscious admissions policy without addressing “the important issues in the case” raised by the Court three years ago (Fisher II 28). Then and now, UT did not meet Justice Alito’s strict scrutiny when explaining why affirmative action is a compelling interest for the government–the only reason allowed under the Fourteenth Amendment’s Equal Protection Clause for the state to make decisions based on the race and ethnicity of an individual. This time around, however, Justice Alito has a new reason to be skeptical.
Justice Alito devotes significant attention to his point that UT invalidates its compelling interest claim by discriminating against Asian Americans. “How can a diverse student body contribute to the greater good,” he seems to ask, “when Asian American diversity doesn’t count?” This would be a fair question if not for copious evidence refuting the notion that affirmative action discriminates against Asian Americans (see the amici submitted on behalf of UT representing over one-hundred Asian American organizations, including the Asian American Legal Defense and Education Fund and Asian Americans Advancing Justice). In this blog I want to draw attention to another, rather obvious flaw in Justice Alito’s thinking. Abigail Fisher isn’t an Asian American.
Today, the Supreme Court handed down another major decision. After they voted last week to protect affirmative action (yay!), but then were deadlocked on DACA and DAPA effectively killing the Obama Administration’s sweeping relief for undocumented immigrants (boo!), I wasn’t sure if I could take any more important SCOTUS decisions. Thankfully, the weekend offered a brief reprieve before today, when Justice Stephen Breyer announced the 5-3 majority opinion in Whole Woman’s Health v. Texas wherein the Court sided with reproductive health providers against the “undue burden” placed upon them by Texas legislators.
In the historic Roe v. Wade decision that first legalized abortion as a constitutionally-protected right, Supreme Court justices ruled that “abortion . . . is performed under circumstances that insure maximum safety for the patient.” However, in Planned Parenthood v. Casey, the majority of Supreme Court justices also established that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right [to access abortion procedures].” In Whole Woman’s Health v. Texas, the Supreme Court was challenged to decide whether newly passed regulations on the Texas’ abortion clinics — requiring that clinics have extra-wide hallways and that abortion providers have admitting privileges at local hospitals — posed an undue burden that unconstitutionally compromised abortion access for Texas’ women.
The regulations were passed in Texas as part of a concerted national effort by conservative anti-abortion activists and legislators to eliminate abortion access by enacting state-level Targeted Regulation of Abortion Providers (TRAP) laws. In essence, the anti-abortion movement seeks to disenfranchise women by enacting laws state-by-state that make the constitutional right to access abortion procedures so practically tedious as to be essentially inaccessible for the vast majority of women.