This tweet from Steve Vladeck brought to my attention that last Friday, the Defense Department submitted a brief to a military commission favorably citing and extensively quoting Hirabayashi v. United States, 320 U.S. 81 (1943).
This strikes me as a fateful moment. The Japanese American cases of WWII (by which I mean Hirabayashi and Korematsu, not Ex parte Endo) have, for a couple of decades at least, been understood as part of the Supreme Court "anti-canon," the Decisions That Shall Not Be Named. Dred Scott. Lochner (pace David Bernstein). It's not just scholars who've said this. Justices have said it in their confirmation hearings, and sometimes in print as well. (And not just the "liberals.")
This is what normalization looks like in the context of law. The unthinkable becomes thinkable, and then it's done, and if it's done brazenly and repeatedly, it becomes mundane.
And then it's on to the next step.
The citation of Hirabayashi is especially worrisome. Over the years, almost all of the critical attention has focused on the Korematsu case, the 1944 decision in which the Court, by a 6-3 vote, upheld the mass exclusion of Japanese Americans from the West Coast. It has always troubled me that Hirabayashi, the Court's earlier, unanimous endorsement of the dusk-to-dawn curfew imposed on Japanese Americans, has been off the radar.
Nobody on the Supreme Court has favorably cited Korematsu in decades. It's (regrettably) a bit different with Hirabayashi. Justice Thomas has cited it approvingly. (See his dissent in Hamdi v. Rumsfeld, 542 U.S. 507, 584 (2004).
Let us be clear: Hirabayashi is every bit as flawed as Korematsu.
Indeed, it's arguably more flawed. My archival research turned up compelling evidence of additional important Justice Department misrepresentations to the Supreme Court in the Hirabayashi litigation beyond those that formed the basis of the grants of writs of error coram nobis to Messrs. Korematsu and Hirabayashi in the early 1980s. The coram nobis grants were based on the revelation of government misrepresentations about the internal threat of subversion that Japanese Americans posed. What I uncovered was evidence that the government also significantly misrepresented the nature of the external threat the country was facing -- the threat of Japanese military action against the West Coast.
This is a moment for those of us who oppose the rehabilitation of Korematsu and Hirabayashi to make our voices heard. Clearly.
We're not going back to that bad old place.