Cass R. Sunstein, Our Anti-Korematsu (Harvard Pub. L. Working Paper No. 21-21, Dec. 29, 2020).
Abstract: In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court took a highly aggressive approach to restrictions imposed by the state of New York on houses of worship, even though those restrictions were vigorously defended on public health grounds. Because of the serious health effects of the COVID-19 pandemic, and because of the plausibility of a plea for judicial respect for complex choices and tradeoffs by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-Korematsu – that is, as a strong signal of judicial solicitude for constitutional rights, and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line. Roman Catholic Diocese can also and equally be seen as a vindication of Justice Robert Jackson’s argument in Railway Express, in which he called for relatively ready invocation of antidiscrimination principles, as opposed to liberty principles, on the ground that the former, unlike the latter, trigger political safeguards against unjustified actions. Nonetheless, there are two open questions. The first is how to think about claims of discrimination in the context of actual and potentially challenging questions about the appropriate comparator, that is, the institutions that are best seen as comparable to houses of worship, in terms of the health risks that they create. The second is whether Roman Catholic Diocese is genuinely generalizable as an anti-Korematsu, or whether it is best seen as a distinctive product of the contemporary Court’s particular solicitude for religion and religious institutions.