Wednesday, January 05, 2011

Justice Thomas and Korematsu

Jamal Greene

Does Clarence Thomas believe Korematsu v. United States was correctly decided? As most Balkinization readers know, in Korematsu the Supreme Court upheld an evacuation order against Fred Korematsu, a U.S. citizen who had been ordered to an internment camp solely because he was of Japanese descent and resided on the West Coast during World War II. Korematsu’s conviction was vacated four decades later on a writ of coram nobis in which the government all but confessed error, and Congress has since officially apologized for the internment and granted reparations to its victims. Korematsu is almost universally acknowledged among serious constitutional lawyers to have been not just wrong, but so egregiously wrong as to warrant inclusion in what Jack Balkin, Sandy Levinson, and others have termed the “anticanon” of U.S. constitutional law.

Consistent with that understanding, Justice Breyer wrote in his recent book that “it is hard to conceive of any future Court referring to [Korematsu] favorably or relying on it.” During her confirmation, Elena Kagan singled out Korematsu as a “poorly reasoned” Supreme Court decision. In Stenberg v. Carhart, Justice Scalia likened Korematsu to Dred Scott. Opinions vary as to exactly why Korematsu is wrong (race-based decisionmaking? excessive military deference?), which is a common feature of anticanonical cases, but a belief that it was correctly decided would be considered, as Jack might say, “off the wall” in most respectable circles. In fact, according to Eric Muller (104 W. Va. L. Rev. 571, 586 n.75) and David Cole (54 Stan. L. Rev. 953, 993 n.165), every Justice of the Rehnquist Court as of 2002 was on record disagreeing with Korematsu, with the exception of Justice Souter (whose view should be no mystery).

But let’s revisit the case as to Justice Thomas. The best evidence that he agrees with Korematsu is surely his dissenting opinion in Hamdi v. Rumsfeld, in which he argued that a U.S. citizen picked up in Afghanistan and alleged to be an enemy combatant had no judicially enforceable procedural rights beyond a determination that the detention was congressionally authorized. This is because deference to the executive’s wartime decisionmaking “extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate.” On its face, this suggests that congressional authorization, an executive order, and the War Department’s assertion that placing Japanese-Americans in internment camps was necessary for national security should have been sufficient to get Justice Thomas’s vote in Korematsu. We can bolster that suggestion by noting that the Hamdi dissent cites favorably to Hirabayashi v. United States, in which the Court unanimously upheld a race-based curfew order that applied to Japanese on the West Coast. Hirabayashi and Korematsu are different only in degree, and -- apart from his unexplained failure to cite Korematsu in his Hamdi opinion -- I am aware of nothing Justice Thomas has said or written that would imply that he sees a doctrinal distinction between them.

We have to go beneath the surface, though, because Justice Thomas is also on record as opposing virtually all governmental racial classifications, even those not obviously motivated by racial animus. And in fact, Muller’s and Cole’s evidence for the assertion that Justice Thomas opposes Korematsu is his joining Justice O’Connor’s majority opinion in Adarand Constructors v. Pena, which held that federal race-based affirmative action programs were subject to strict scrutiny. In that opinion, Justice O’Connor wrote, “Korematsu demonstrates vividly that even ‘the most rigid scrutiny’ can sometimes fail to detect an illegitimate racial classification.” It’s rather odd phrasing, and from a certain perspective sounds almost sarcastic. I imagine that most Korematsu scholars would dispute that the Court in fact applied “the most rigid scrutiny,” even though Justice Black’s majority opinion used those words. And the word “illegitimate” modifies the racial classification, not the Court decision. Someone who believes in absolute judicial deference to military decisionmaking in wartime could join that language in good faith, since it absolves the Court, which applied “the most rigid” scrutiny. It seems to suggest that the error was solely the military’s, not the Court’s.

There is additional, circumstantial, evidence that Justice Thomas agrees with the Korematsu majority. He referred to Korematsu in his concurrence in Missouri v. Jenkins to note that strict scrutiny has been fatal in fact except for decisions, namely Korematsu and Hirabayashi, “rendered in the midst of wartime,” language fully consistent with his deferential posture in Hamdi. He also referred to Korematsu in his dissent in Grutter v. Bollinger, the Michigan law school affirmative action case, but there he wrote that “the lesson of Korematsu is that national security constitutes a ‘pressing public necessity,’ though the government’s use of race to advance that objective must be narrowly tailored.” I suspect most lawyers would not represent the lesson of Korematsu in affirmative terms. They would say that the “lesson” of Korematsu is that we should be suspicious of any government claims that its actions in the national security context constitute a “pressing public necessity.”

Of course, Justice Thomas is well-known for making claims about constitutional doctrine that are considered “off the wall” by most mainstream thinkers (though Justice Scalia is trying to give him a run for his money this week). Consider, for example, his repeated suggestions that we should reconsider the New Deal settlement. Or his suggestion that schoolchildren have no speech rights while in school. But it would be discordant for Justice Thomas to agree with Korematsu, since he and Justice Scalia are the two strongest proponents of a “colorblind” Constitution in the Court’s history. It seems at least ironic that he would be the only member of the Court to agree with the outcome in the case for which there is the greatest consensus that the Court was wrong to permit race-based decisionmaking.

If Justice Thomas, a sitting Supreme Court Justice, does in fact agree with Korematsu, does it get kicked out of the anticanon? Or are Justice Thomas’s views for whatever reason sui generis in deciding what is canonical or anticanonical?

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