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There’s a lot that’s remarkable about last Tuesday’s Third Circuit decision in Hassan v. City of New York, which Faiza Patel cogently summarized in her post last week. In a nutshell, Hassan involves a challenge to secret intelligence operations carried out by the New York Police Department (NYPD) over the years since September 11 that allegedly targets Muslim communities “based on the false and stigmatizing premise that Muslim religious identity ‘is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.'” The district court had tersely granted the City’s motion to dismiss both because it concluded the plaintiffs lacked standing and because, in the alternative, it held that the plaintiffs had failed to overcome the pleading burden articulated by the Supreme Court in Iqbal. But the Third Circuit reversed on both fronts, holding that the plaintiffs’ allegations, if true, were more than enough to establish both that they had suffered an injury in fact sufficient to satisfy Article III standing, and that their equal protection and First Amendment claims were sufficiently plausible to satisfy Iqbal. To be sure, the Third Circuit’s decision is interlocutory — coming at a very preliminary stage in the litigation. But what I want to suggest in the post that follows is that, as much as any other post-September 11 judicial decision, Hassan represents the full-throated repudiation of the Supreme Court’s infamous World War II-era ruling in Korematsu v. United States that has been so long in coming — and so thoroughly overdue.

As I’ve written about before, Korematsu reflects two separate — but equally important — constitutional failures. The first failure was the internment policy itself, which we now know (and which the US government knew at the time) to have been a completely unnecessary — if not hysterical — overreaction to hyperbolic and (after Midway, at least) categorically overstated fears of a Japanese invasion of the West Coast. By itself, the camps were a dark stain on the history of civil liberties in the United States — albeit one of many, alas. But the second failure was, historically, the far more significant and unique one — the Supreme Court’s conscious constitutional rationalization of the internment policy, based upon a combination of naïveté on the Justices’ part and the affirmatively misleading (if not downright disingenuous) briefing by the federal government. As Justice Robert H. Jackson understood — and forcefully articulated — in his Korematsu dissent, the real violence to the “rule of law” resulting from the camps was thus not the underlying policy, but rather its validation by the Supreme Court. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.”

But we’ve struggled somewhat with the second constitutional failure. The courts have repudiated Korematsu’s conviction; the Office of the Solicitor General has confessed error for its role in perpetuating the government’s misleading case before the Supreme Court; and scholars have suggested that Korematsu itself has become part of the “anti-canon” — the class of Supreme Court decisions so reviled that they are cited, if at all, in support of the wrongness of their holdings. But Korematsu itself remains on the books, as do broader concerns that courts are still vulnerable to Korematsu — style reasoning, i.e., that the need to protect national security might provide legal justification for government conduct that would otherwise be unjustifiable. Indeed, one need look no further than the ongoing debate over the SSCI’s torture report for evidence of the Korematsu mentality being alive and well.