UC Irvine

This study examines the extent to which the Supreme Court protects civil liberties during wartime. I specifically focus on the Court’s unwillingness to protect the rights of minoritized groups compared to its defense of Whites’ civil liberties during wartime. I argue that the primary factor that distinguishes whether the Supreme Court protects civil liberties during wartime is the Court’s adoption of racial stereotypes in its wartime decisions involving minoritized groups compared to its cases involving Whites. I show that there are two especially important aspects of the permanent foreigner racial stereotype that are prevalent for decades before wartime that the Supreme Court adopts in its wartime decisions involving minoritized groups: that certain minoritized groups are indoctrinated with beliefs that make them incapable of assimilating into American society and that due to this indoctrination, they cannot be trusted as loyal American citizens. I propose my foreign activation model to explain the process in which the permanent foreigner racial stereotype is perpetuated by the news media and political leaders before wartime, weaponized by them during wartime by linking minoritized groups to the wartime threat, and then adopted by the Supreme Court in its wartime civil liberties cases. The methods that I use to interrogate my theory include a legal analysis of the Supreme Court’s wartime civil liberties cases, including the Japanese American internment cases of Korematsu and Hirabayashi during World War II. I then compare the legal reasoning in those cases to the counterexample cases of White treason suspects during the Civil War in Ex Parte Merryman and Ex Parte Milligan. Finally, to test the robustness of my model, I apply it to the case of Muslims during the War on Terror case of Trump v. Hawaii. I also analyze public opinion of historical trends and conduct an archival analysis of historical newspapers and speeches to determine the prevalence of the permanent foreigner racial stereotype. I find that contrary to the prevailing view of most legal scholars, the Supreme Court does not invariably defer to the president or military commanders during wartime. In wartime cases involving minoritized groups, the Supreme Court relies on the permanent foreigner racial stereotype to overstate the national security threat posed by minoritized groups to justify discriminatory policies that violate their rights. However, in wartime cases concerning White suspects, the Supreme Court does not perceive Whites as a threat, thus protecting their civil liberties. In doing so, the Court undermines its constitutional duty to protect fundamental liberties and it is a failure of the United States as a constitutional republic to control the unlawful actions of government officials during wartime.