The Kende-Somin Debate on Justice Thomas and Korematsu (and Hirabayashi)

Mark Kende and Ilya Somin are disagreeing at length over whether Justice Thomas does or does not view the notorious Korematsu decision as erroneous.

In this post I want to point up a common mistake people (including Kende and Somin) make in discussing Korematsu:  they speak as though that case upheld the constitutionality of the confinement of Japanese Americans in so-called "relocation centers" during the war.  The opinion does not do that, and while laypeople (at least those who know anything about this at all) typically think that it does, constitutional scholars should know better.  Korematsu upheld the constitutionality of the removal of Americans of Japanese ancestry from military zones set up by General John DeWitt, presiding general of the Western Defense Command.  Korematsu did not address the constitutionality of the detention of those people in the War Relocation Authority's camps.  One might think that the first entails the second (I certainly do), but the Court elected to break the question of removal apart from the question of detention.  On the same day that the Court upheld removal on constitutional grounds, it struck down continued detention in Ex parte Endo on, in effect, administrative law grounds.  (But see Patrick Gudridge's article Remember Endo.)

This means that, carefully read, Korematsu is not a case about detention, which is what Hamdi is about.  

More importantly, though, I think that Somin and Kende (by obsessing, as so many do, on Korematsu) miss a very important data point about the thing they are actually disagreeing about, which is not Justice Thomas's position on the rightness or wrongness of Korematsu but  Justice Thomas's views on executive power in wartime and of the Court's role (or lack of role) in checking it.

In his article that launched his exchange with Somin, Kende notes -- but does not make nearly enough of -- the fact that in his Hamdi opinion, Justice Thomas approvingly cited the Court's 1943 opinion upholding a race-based curfew in Hirabayashi v. United States.  This is troubling for the reason Kende mentions -- which is that the government's defense of the curfew in Hirabayashi was at least as consequentially infected by lawyer misconduct as the better-known Korematsu decision.  But it's troubling for a reason more central to Kende's argument, and more damaging to Somin's:  Thomas's Hamdi opinion cited Hirabayashi approvingly precisely for the legal proposition that the Court should not scrutinize the President's factual predicates for whatever wartime actions the President deems necessary.  ("This deference extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 (“We are not here concerned with any question of the guilt or innocence of petitioners”). See also Hirabayashi v. United States, 320 U.S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29—30 (1827).)

That, it seems to me, is the proposition about the extent of executive power (and lack of judicial power) that Kende is really trying to pin on Justice Thomas, and that Somin is trying to avoid pinning on him.   

Somin notes correctly that Thomas's citations to Korematsu all seem to be for its uncontroversial proposition about the appropriate level of scrutiny in cases challenging facially race-based action.  But that misses the point:  in Hamdi, Justice Thomas explicitly approved of an erroneous and dishonestly procured Japanese American case from World War II for the precise proposition that the courts must defer to the President's factual determinations supporting repressive race-based action against citizens (and not just for the uncontroversial proposition that race-based action gets strict scrutiny).

The case was Hirabayashi, not Korematsu.  But why should that matter?  

It's time for constitutional scholars to get their noses out of their casebooks (which reprint only Korematsu) and into the history books -- and recognize the importance of the forgotten Hirabayashi case.  

Comments

[Matt]

That's very helpful, Eric. Thanks for writing it up.

[Barry]

"Thomas's Hamdi opinion cited Hirabayashi approvingly precisely for the legal proposition that the Court should not scrutinize the President's factual predicates for whatever wartime actions the President deems necessary. "

Which basically means that if Thomas' view of the law had prevailed, the President of the USA could detain, torture and likely kill any US citizen at will for the next several decades (i.e., until 2/3 of both houses of Congress voided the AUMF).