Wednesday, June 26, 2013

Justice Thomas and Korematsu Redux

Jamal Greene

Some time ago I wrote a post in which I asked whether Justice Thomas believes Korematsu v. United States is correctly decided.  I concluded that it was an open question given that he has never (to my knowledge) said otherwise; that he has cited favorably to Hirabayashi v. United States; and that he supported a principle in his Hamdi v. Rumsfeld dissent that is consistent with the majority's decision in Korematsu.

We now have an additional and significant data point, namely Justice Thomas's concurring opinion in Fisher v. University of Texas. Discussing the contours of strict scrutiny, he begins with what appears to be a favorable citation to Korematsu for its recognition "that protecting national security" may satisfy that standard and that the evacuation order at issue in that case was justified by "a definite and close relationship to the prevention of espionage and sabotage."

As I discussed in my earlier post, Justice Thomas's apparent embrace of Korematsu is, at the least, ironic. He is the Justice most hostile to racial classification in every context except the one -- evacuation and detention in the absence of individualized or even general suspicion -- in which every other Justice (and nearly every mainstream legal thinker) agrees that racial classification is impermissible.  There are many opinions in the U.S. Reports supportive of Korematsu's invocation of strict scrutiny, but Justice Thomas's Fisher concurrence appears to be the closest any Justice has come to supporting Korematsu's implementation of that standard.

The best explanation for this tension is Justice Thomas's quasi-religious devotion to constitutional rules over standards, born of his evident hostility to judicial discretion.  Korematsu involves a conflict between two "rules" he holds dear -- the rule that the Constitution is colorblind and the rule that the Executive gets absolute discretion on wartime operational decisions.  Judicial discretion as between these two rules is inevitable, and for reasons only he knows, Justice Thomas seems to favor the second over the first.

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