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Thursday, October 23, 2014

Justice Clarence Thomas and Korematsu: The Sequel

I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 .   Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article.  http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/    Respectfully, I think Ilya is wrong.

First, Ilya and I actually agree on several things.  We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime.  Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not. 

Yet Justice Thomas in Hamdi wrote that:  “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.”  Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.”  Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous."  Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters.  I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position.  He is way out on a limb in finding this U.S. citizen has virtually no rights.  And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant.  Thomas also indicates that he believe courts should hesitate to intervene in such decisions.  All of these views are consistent with Korematsu.

Second, Ilya and I agree that Justice Thomas’ dissent in Johnson v. California is inconsistent with the Thomas view that the government must be color-blind.  Justice Thomas said that California could racially segregate prisoners at intake for security reasons.  Again as in Korematsu, for Thomas, security concerns trump color-blindness. 

Where Ilya and I part ways is on what inference can be drawn from these decisions, and from other statements that Justice Thomas has made.  I think Justice Thomas’s statements on executive power during wartime are consistent with the Korematsu decision, in that his easy acceptance of asserted national security concerns (his Hamdi dissent), and his judicial caution when security is at stake, trump his normally passionate commitment to color-blindness (his Johnson dissent).  Ilya think this is a stretch for several reasons.

Ilya initially has a dilemma because in the Fisher v. Texas affirmative action, Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny.  Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.”  But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts).  This is odd.  For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.”  By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher.  Thomas could have cited other cases.  The citation by Thomas is even more troubling because, as Ilya admits, the Court in Korematsu did not really use strict scrutiny.    

Second, Ilya says that Hamdi is distinguishable from Korematsu because the President declared Hamdi to be an enemy combatant whereas the “Japanese Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one.”  Respectfully, I think Ilya has it backwards.  The alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant.  Moreover, Thomas’s views in Johnson show his deference to allowing prison officials to take race into account, yet how can one suggest the Japanese-American internment camps were not the essential equivalent of prisons. 

Third, Justice Thomas curiously omits mentioning Korematsu in Hamdi despite Korematsu’s obvious relevance, though Justice Thomas cites other World War II cases favoring executive power.  This raises the question of what is to be gained by the omission.  One answer is that Justice Thomas can avoid stating his view of the case.  Fourth, Ilya indicates one of his objections to Korematsu is that the government provided false information.  I agree with him here.  Yet Justice Thomas has apparently never written a sentence (despite numerous chances) expressing this concern about Korematsu, and Thomas also ignored the possibility that the government lied about Hamdi’s supposed dangerousness since Hamdi was released so quickly.  Thomas’s Hamdan dissent for example says nothing of the Hamdi release.  Once again, a la Korematsu, Justice Thomas does not generally question military decision-making.   

Ilya correctly points out that John Yoo has criticized Korematsu.  That’s a good thing.  It would be great if Justice Thomas did the same, but Justice Thomas instead continues to treat the case like standard equal protection material.  Overall, the evidence shows that Justice Thomas’s wartime, and security focused, jurisprudence is well in line with the majority’s approach in Korematsu.  


Posted by Mark kende on October 23, 2014 at 07:10 PM in Constitutional thoughts | Permalink


I appreciate the debate and think at some point it is a matter of trying to read between the lines a bit. I do go back to the fact that Thomas repeatedly in his separate opinions reaches out to criticize precedents he believes are wrong, offering up the sentiment that "if given the chance" he would overrule them. He does this more than other justices, I think.

O'Connor et. al. called out Korematsu, including in a case cited here. Thomas citing such a criticized precedent w/o comment, even when other justices cited it with disfavor, to me is somewhat telling.

Posted by: Joe | Oct 24, 2014 2:17:48 PM

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