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Wednesday, October 15, 2014

Justice Clarence Thomas and Korematsu

Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever.  On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868   Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece.  Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly.  Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu.  The abstract is below.  Contrary thoughts or arguments are welcome.  Or perhaps I should not be stunned.


The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision.  This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case.  Two cases provide the major evidence.  First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights. 

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process.  California argued this minimized racial violence.  Thomas therefore abandoned his well-known position of racial color-blindness in the case.  The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu.  The essay also addresses several counter-arguments.  While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Posted by Mark kende on October 15, 2014 at 04:39 PM in Article Spotlight, Constitutional thoughts | Permalink


Your reasoning is unpersuasive, Prof. Kende. It is impossible to explain the (unrepudiated) doctrinal holding of Korematsu that national security concerns may justify racial discrimination without a recitation of its finding that the internment bore a "definite and close" relationship to preventing espionage and sabotage. The doctrinal points of Korematsu (that racial discrimination is subject to strict scrutiny) have always been less controversial with its detractors than the Court's embrasure of the dubious factual claims made by the government in justifying the internment.

Korematsu rises and falls on whether the government was correct in its claim that there existed such a pervasive strain of disloyalty and subversive activity among Japanese Americans that their mass-internment was the most narrowly-tailored solution available to prevent sabotage and espionage. The court held that there was, but that is a factual determination: one based on racism, paranoia, and the uncritical acceptance of trumped up evidence. Nothing in Thomas's opinions evaluates, much less embraces, the truth or falsity of those claims, so your aim of demonstrating Thomas's approval for the outcome in Korematsu, rather than the doctrine for which it stands, is unsupportable without more evidence.

Posted by: Vinminen | Oct 20, 2014 4:44:16 PM

Obviously (and Mark does not suggest otherwise), there is no reason to believe (and every reason to disbelieve) that Justice Thomas supports or endorses the racist views and government deception that went into the policies that were reviewed and upheld in Hirabayashi and Korematsu. He has no "Korematsu problem" in that sense. While it is probably true that, at a high level of generality, his views of executive power in the national-security arena are consonant with the deference that the justices accorded the President in those cases, there is no reason to think he would be (or even that he would have been) satisfied by the broad-brush and racist stereotyping and insinuations that were regarded (even by the Court's "liberals") as "evidence" justifying the policies in question.

Posted by: Rick Garnett | Oct 17, 2014 2:32:01 PM

Thanks to you all for the comments. Besides the points made by Joe and Barry, one of the problems facing Ilya and Orin is this language from the Justice Thomas concurrence in Fisher v. University of Texas, 133 S.Ct. 2411 (2013):

"The Court first articulated the strict-scrutiny standard in Korematsu v. United States, 323 U. S. 214 (1944). There, we held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216. Aside from Grutter, the Court has recognized only two instances in which a "[p]ressing public necessity" may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at "all persons of Japanese ancestry" on the grounds that the Nation was at war with Japan and that the order had "a definite and close relationship to the prevention of espionage and sabotage." 323 U. S., at 217-218."

This is cited in footnote 58 of my article. I think the approving reference to the facts of Korematsu strongly support my thesis. I suppose one can try to dismiss this as just a recitation related to strict scrutiny, but his language goes farther than that.

Posted by: Mark Kende | Oct 17, 2014 2:28:07 PM

Ilya: "Also, much of Thomas' dissent in Hamdi is focused on enemy combatants and presidential power over them. The people interned during WWII were not enemy combatants or even alleged to be such by the government."

Where 'enemy combatant' means 'picked up by the US government after waving bags of no-questions-asked cash'.

Posted by: Barry | Oct 17, 2014 1:17:58 PM

The article cites a few cases where Justice Thomas cites Koremastsu without suggesting (as do other justices did) it is wrongly decided as setting forth one of the rare times (other than, e.g., prisoners) where racial classifications can be used. It cannot be say he "agrees" merely because he cites the case as precedent. OTOH, he has made it clear, even when it was not necessary, when he disagreed in various cases ... even if the precedent was longstanding. This is at least worthy of note.

It should also be noted that Rehnquist in his book on justice during wartime & elsewhere split the baby here -- citizens and noncitizens in his view should be seen differently. In Rasul, e.g., Scalia treated non-citizen detainees differently. Critics of Korematsu generally don't support the mass detaining of non-citizen Japanese either.

Posted by: Joe | Oct 16, 2014 11:13:11 AM

Like Ilya, and for the same reasons, I'm not persuaded.

Posted by: Orin Kerr | Oct 15, 2014 11:14:06 PM

My post on repudiation is here: http://volokh.com/2013/03/13/repudiating-the-japanese-internment-decisions/

As to Korematsu, I don't think it follows from Thomas' jursprudence on executive power and Johnson v. California(which, BTW, I disapprove of) that he agrees with Korematsu. Among other things, Scalia voted with Thomas in Johnson, yet has also said that Korematsu was wrong. Their Johnson dissent was based on the doctrine that constitutional rights generally have lesser weight in prison, which is not true for ordinary free citizens, even in wartime. Also, much of Thomas' dissent in Hamdi is focused on enemy combatants and presidential power over them. The people interned during WWII were not enemy combatants or even alleged to be such by the government.

Posted by: Ilya Somin | Oct 15, 2014 9:03:45 PM

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