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US President Trump's "Protecting the Nation from Foreign Terrorist Entry into the United States" was quickly "swept under the legal rug" by the judiciary, with the result that the second order "Protecting the Nation From Foreign Terrorist Entry Into the United States." was signed by Trump and that also appears headed for another quick "sweep under the legal rug"

However, these present a rare opportunity for the US Supreme Court to overturn these kinds of orders, thus vacating the precedent set by the horrendous Korematsu decision (a decision so terrible that even Scalia spoke against it when he was still alive) and reversing the precedent set by upholding Executive orders like order 9066

Yes, there have been lesser legal and political attempts to right the wrongs created by Korematsu. Roosevelt suspended 9066 almost a year before the end of the war, Ronald Reagan signed the Civil Liberties Act of 1988 over the objections of most Republicans, and Korematsu's conviction was reversed coram nobis, and there have been perhaps hundreds of "legal scholars" who have used Korematsu as an example of a bad legal decision.

But, SCOTUS has made the claim that they cannot overturn Korematsu because nobody has presented an equivalent legal case to them and as a result it remains the law of the land, odious though it may be.

It would seem to me that if SCOTUS really wants to fix their decision in Korematsu they would immediately take up Trumps' current Executive Order and rule it unconstitutional, thus correcting that wrong, with the additional benefit that the citizens of the United States would not have to waste further time in the future being distracted by these sorts of EO's from the Trump administration. It would further seem that the Congressional Republicans who claim to want smaller more limited government would carry the banner for this (since it would clearly limit the power of the President as well as atone for their own appalling actions opposing Ronald Reagan in 1988). In short, it is something that would benefit everyone, would be opposed by nobody, and so I am wondering if there has been any discussion in the legal community (perhaps quiet, behind-closed-doors discussion) to getting this done?

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    Neither executive order affects citizens of the US, so they aren't equivalent legal cases to Korematsu. Also, they don't make anything illegal. – Brythan Mar 18 '17 at 15:42
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    a decision so terrible that even Scalia spoke against it when he was still alive. Are you trying to say something like "Scalia is a racist but even he wasnt that racist"? If so... I highly recommend you take that out. – David says Reinstate Monica Mar 18 '17 at 16:05
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    I'm confused: how the heck do you think the immigration order and Korematsu are related (besides "I don't like either of them")? Do you understand that Korematsu was about interning Americans during wartime, not about controlling immigration? – cpast Mar 18 '17 at 22:13
  • Are you trying to say something like "Scalia is a racist but even he wasnt that racist"? No, I am pointing out that there is zero dispute even in the most conservative SCOTUS appointments that Korematsu was unconstitutional. Nevertheless it is interesting that you chose the "take it out, I don't like it" approach in an attempt to discredit the notion that the Korematsu decision wasn't racist. – Ted Mittelstaedt Mar 18 '17 at 22:51
  • Korematsu was not just about interning Americans during wartime. Some of the Japanese that were interned were NOT US Citizens. Korematsu was also about the legality of an EO based purely on racism. The US Constitution is no longer "colorblind" since the 13th and 14th Amendments were specifically added in response to racism. Thus it can be argued that the US Constitution outlaws racism. Therefore, an EO issued purely on a racist basis is also illegal. The interesting part here is that the 14th is one of the amendments that is claimed to stimulate illegal immigration. – Ted Mittelstaedt Mar 18 '17 at 23:06
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It would seem to me that if SCOTUS really wants to fix their decision in Korematsu they would immediately take up Trumps' current Executive Order and rule it unconstitutional, thus correcting that wrong

Whatever the members of the Supreme Court may (or may not) want, the Court itself does not get to intervene in any arbitrary court case that it chooses.

For a case to end up at the Supreme Court, it needs to either be one where they have original jurisdiction or one where it was appealed up to them. Only then do they have the option of taking it up and setting precedent.

That said, your question could be reframed as "Is there anyone who wants to appeal the ruling on this immigration order up to SCOTUS to reverse Korematsu?" In that case, the question becomes whether or not Korematsu is even relevant here. As Brythan points out in a comment,

Neither executive order affects citizens of the US, so they aren't equivalent legal cases to Korematsu. Also, they don't make anything illegal.

There's also laws which have been passed since the Korematsu decision which may make it irrelevant - remember, the Court interprets the laws, but Congress can change them at any time. Even if Korematsu is still technically precedent, that's irrelevant if there is new legislation which makes internment outright illegal. According to Wikipedia, there are some arguments that the Civil Liberties Act of 1988 does exactly that.

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  • SCOTUS can overrule the Civil Liberties Act. Only an amendment to the constitution that specifically deals with racism would override SCOTUS. We have so far one comment to this question arguing that racism is legal under the US constitution so it's pretty clear that attention is still needed on this issue. Your point on appealing the question is quite valid although it already does have an answer - since the Trump administration is indeed in process of appealing the current rulings on his EOs. – Ted Mittelstaedt Mar 19 '17 at 4:07
  • @TedMittelstaedt - Just as SCOTUS can't intervene in any arbitrary case, they can't just choose to strike down any laws they don't like. First someone has to challenge it and appeal it all the way up, then the Court needs to find some Constitutional grounding to invalidate it under. It happens, but it's not common, and something like the CLA is extremely unlikely to get struck down on Constitutional grounds. – Bobson Mar 19 '17 at 4:22

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