But Korematsu? Never Again

Most young people had never heard of Korematsu until yesterday, when Carl Higbie, another name no one ever heard of until he appeared on Megyn Kelly’s Fox show, did the unthinkable.

During an appearance on Megyn Kelly’s Fox News show, Carl Higbie said a registry proposal being discussed by Trump’s immigration advisers would be legal and would “hold constitutional muster.”

“We’ve done it with Iran back awhile ago. We did it during World War II with the Japanese,” said Higbie, a former Navy SEAL and until Nov. 9, the spokesman for the pro-Trump Great America PAC.

This is lunacy of the worst order, and yet another reason why we shouldn’t look to Navy SEALs to explain law. They’re great at killing Osama, but really lousy at constitutional interpretation.

“Come on, you’re not proposing we go back to the days of internment camps, I hope,” she said.

“I’m not proposing that at all,” Higbie told her. “But I’m just saying there is precedent for it.”

He’s talking about Korematsu, one of a handful of appallingly disgraceful Supreme Court decisions that seemed undisgraceful at the time, because we’re a nation prone to hysteria. It reflected a maxim, Inter arma enim silent leges, in times of war, the laws fall silent. And the decision has never been reversed.

The Bill of Rights was written precisely to protect individuals against governmental abuses of power like this. And yet, in 1944, the Supreme Court upheld the order’s constitutionality. Writing for the majority in Korematsu v. United States, Justice Hugo Black said Americans of Japanese descent were incarcerated “because we are at war with the Japanese empire,” not because of racial “hostility.” But that was obviously untrue, as Justice Black suggested in an interview decades later, saying that “people were rightly fearful of the Japanese” because to non-Japanese people “they all look alike.”

Today the Korematsu decision is widely regarded as one of the court’s most shameful. But it has never been overturned because the issue hasn’t come up again.

Korematsu is up there on the list of insanely bad Supreme Court decisions, alongside Plessy v. Ferguson and Buck v. Bell.  But, as the Times correctly notes, it has never been reversed. It should be, but there is a constitutional requirement of a “case and controversy,” meaning that the Supremes can’t just issue an order saying, “you know that decision we wrote in 1944? Well, it was awful and so we reverse it.”

But can it rear its ugly head again?  Of course it can. This is America, the land of Hysteria!

On Korematsu, Scalia unequivocally stated that the ruling was “wrong,” thereby differing with the small but noteworthy group of conservatives who have defended the decision in recent years, such as Judge Richard Posner and columnist Michelle Malkin. But he also predicted that a similar internment might be upheld in the future:

“But you are kidding yourself if you think the same thing will not happen again,” he said.

He used a Latin expression to explain why. “Inter arma enim silent leges … In times of war, the laws fall silent.”

If you dig behind what Scalia was saying, you realize there are two forces at play, neither of which is anything but a mindless visceral reaction to external stimuli that gives rise to transitory insanity and decisions like Korematsu.  The ability to whip up irrational fears and get tons of angry and frightened people to lose their shit and demand whatever solution seems like a good idea at the moment, or support the imposition of flagrantly unconstitutional actions because “this is different,” is as American as mom and apple pie.

Of course Korematsu should have been reversed during the hiatus of sanity between World War II (when we called the Japanese “nips,” the Germans “krauts,” and millions of people were brutally killed) and 9/11, which changed everything again. But there was no case to do so. Somehow, American managed not to put anybody in internment camps behind barbed wire. Except maybe in Guantanamo, where they were tortured and held forever despite not having been snatched from their beds by mistake.

My old pal* Elie Mystal, who has taken this election exceptionally hard, isn’t prepared to forgive the Court for not reversing Korematsu.

Thing is, there are a lot of cases you can cite if you are looking to support judicial deference to Congress. There is scholarship supporting judicial deference. When you bring up Korematsu, you’re not doing it to make a law nerd point about executive orders imposed upon the homeland during battle.

As we learned from John Yoo, our national apologist for torture in the Department of Justice, Office of Legal Counsel, who landed a cool position as a law professor at Boalt Hall Berkeley, wrap up the worst of human emotions in gibberish and the law can justify almost anything. But didn’t we all agree that Korematsu was, well, too wrong and outrageous to ever consider again?

Korematsu is still good law, because 65% of white men and 53% of white women agree with its principle that America means white people… and that the government can do whatever it likes to non-white people in order to keep it that way.

Apparently not. This isn’t merely insanely absurd, but what might be best characterized as “reverse Korematsu,” the irrational fear of people to whom one attributes unfounded evil and a need for remediation. Maybe a nice re-education camp?

The point is that war hysteria gave us Korematsu, a blight on our nation and the law, and that it’s raised again reflects our devolution into idiotic visceral reactions. Elie is right that nobody would bring up this precedent who wasn’t too dangerous to be allowed anywhere near power.

At the same time, the hysteria giving rise to Higbie the SEAL, even thinking to mention it isn’t any different than the hysteria that responds to it.  Hysteria makes people do and say horrible and stupid things. The solution to hysteria isn’t to be more hysterical, but for the grown-ups in the room to calm things down, promote reasonableness and thoughtfulness rather than fear and loathing. For which the hysterical will hate the grown-ups for not validating their wildest feelings, but that can’t be helped. No good deed goes unpunished.

No, it’s inexcusable for anyone to raise Korematsu as a precedent, as the basis for doing something in America. Ever. No, America doesn’t agree with it. No, the Supreme Court didn’t fail to reverse it just to make sure we always had a way “to do whatever [white America] likes to non-white people.” And it’s time for reasonable people to stop being hysterical about everything.

*I’m not sure that Elie likes me anymore.

41 thoughts on “But Korematsu? Never Again

  1. Keith

    But didn’t we all agree that Korematsu was, well, too wrong and outrageous to ever consider again?
    No, we agreed it’s too wrong and outrageous to consider then and still now. You clearly understand how hysteria can be used to whip people into a frenzy. Are the odds that an attack on our country under an Trump administration could never implicate Korematsu? Are they even that low? I’m not sure how that’s even far out of the range of possible for this President.

    I’d like to think our Country would realize this is bad and our military and police would never follow such orders. But they followed them for Fred and I don’t see how the innate weakness in the human condition has changed much. When the admin says they have precedent and are following procedural steps, would Judges (and eventually Justices) immediately strike down attempts to justify administration actions as inherently immoral and repugnant? Maybe. But it could also be written like this:

    “[Name] can obtain relief only if that determination was contrary to, or an unreasonable application of, clearly established Federal law, as deter-mined by the Supreme Court of the United States.” Application denied.

    Hopefully about 2 or 3 years later, the next Korematsu could get this stain removed from the books. But if history is any guide, I wouldn’t take the bet.

  2. Agammamon

    “They’re great at killing Osama, but really lousy at constitutional interpretation.”

    Hell, I’m lousy at killing Osama *and* constitutional interpretation – yet I knew Korematsu was repudiated.

    I think he’d have been on stronger ground if he’d said the precedent is ‘courts will let us get away with shit in the short term, if we scare them enough, that they’ll throw out on later, more sober, reflection’.

  3. Jim Tyre

    This morning’s news is that Jeff Sessions has accepted the nod to be Trump’s AG. If confirmed, the chances of DoJ invoking Korematsu may become less unlikely.

    1. SHG Post author

      There is something missing from your deeply thoughtful analysis, but since this isn’t a post about Jeff Sessions, and you’ve gone orthogonal as you are wont to do, we will never know what might have filled the deep, dark, nasty hole.

  4. ShelbyC

    IANAL, but didn’t Bakke, the seminal affirmative action case, rely heavily on Korematsu? I’m not sure alot of folks would like condemning Bakke.

    1. SHG Post author

      Bakke was a long time ago, so I for one don’t recall. You could always read Bakke and actually inform us rather than ask a question so that someone else should do your legwork.

      1. ShelbyC

        OK, you are correct, I apologize. Although I know you hate it when non-lawyers presume to “inform” you folks. So here goes. Bakke relies heavily on Korematsu. Korematsu is, in fact, the foundation of the concept of strict scrutiny. I agree that the case should be overturned, but I would think that this would weigh in on such a discussion, as well as whether or not Korematsu should be used as precedent.

        1. SHG Post author

          What’s interesting in Bakke (yeah, I looked to) is that Korematsu was used for the opposite proposition, that it authorized the consideration of race in admissions by the Regents. Ironic. Had it been reversed there, it would have ended affirmative action.

  5. Keith

    But, as the Times correctly notes, it has never been reversed. It should be, but there is a constitutional requirement of a “case and controversy,” meaning that the Supremes can’t just issue an order saying, “you know that decision we wrote in 1944? Well, it was awful and so we reverse it.”

    There have been opportunities for the Court to act. They could have mentioned it in passing, to be quoted in the future (although that would lack the precedential heft). Or they could have used a case like Hedges v. Obama, where the petitioners specifically asked them to consider Korematsu, and overrule it.

    Question 4: To the extent that the Second Circuit opinion holds that Korematsu is among the “existing law and authorities” under § 1021(e) that relate to military detention of citizens and legal residents, should Korematsu be overruled?

    Spoiler alert: Petition DENIED

    1. SHG Post author

      Just to be clear, one case is not a good use of the plural under common English usage. Your personal pronouns may vary. That said, the case was a mutt, cert denied, but you are right, that had they ignored everything about the case itself and dealt only with Q4, which raises only the point that the 2d Cir. cited to Korematsu, they could have granted cert., taken on that one question and reversed Korematsu.

      But they didn’t grant cert., for about a million really good legal reasons, and so passed on the opportunity to reverse Korematsu. Which, in retrospect, may not seem the smartest choice (then again, had anybody suggested this would become a serious problem in the future, they would have been institutionalized), but also runs contrary to every precept of what cases are granted cert and why.

      That said, you are right. This did provide an opportunity, even if one-step removed and with less than zero chance of getting cert as a stand alone issue.

      1. Keith

        Of course, it’s also possible they didn’t grant cert on the question because they didn’t have enough votes to overturn Korematsu. What a shame they don’t have a modicum of transparency, so we can do more than just read the occasional tea leaves.

          1. NickM

            But would it be constitutional to put space aliens in internment camps?
            I leave aside the question of whether this could result in the Earth being vaporized.

  6. Allen

    That good old tyme Corruption By Blood. I am firmly convinced that people are not doomed to repeating history, but revel in repeating it.

    I had a nephew spend a summer with us, so I took him out to Manzanar one day. We walked around, went through the museum there, and he got more and more quiet. Finally, as we were walking out to the parking lot he turned to me and said “how could we?” Damn good question young man.

    1. SHG Post author

      There is, of course, an answer to that damn good question: Last time, we were wrong. But this time, we’re RIGHT!!!

      1. Allen

        I had no doubt he meant how could you. That those particular sins belong to others didn’t seem to matter to him and I took his point. We’re supposed to be the guardians for the future and we’re not doing a very good job of it.

    2. Erik H.

      I’ll begin by saying that I think Korematsu was one of our more troubling decisions. That said, there is a difference between “Muslim” and “Arab.” One is a belief system which you can adopt, continue, or dismiss. The other is an immutable trait. If we’re going to be talking about this stuff we should be clear.

      1. SHG Post author

        Immutable characteristics were so yesterday. Today, we can identify as any damn thing we want. It’s no longer a relevant distinction.

        1. maz

          I suspect there’s significant correlation between how strongly one believes in immutability and support for Korematsu….

  7. AH

    I know Gordon Hirabayashi felt his 1987 victory at the Court of Appeal to be bittersweet. Some part of him wished the convictions would have been upheld, allowing him to appeal to the Supreme Court where they could have dealt with the issue definitively.

      1. AH

        I’m flattered you were thinking about me. I’m saddened that it does not appear that the Korematsu (and Yatsui and Hirabayashi) cases will not fade into irrelevance, only to be brought up as a reminder of what not to do, any time soon.

        To your point on hysteria, I can understand the fear that people have when registries and similar notions are brought up by the president-elect (or his surrogates). Although Elie’s comment that 65% of white men and 53% of white women approve Korematsu is clearly hyperbolic, that is somewhat cold comfort if the president those people elected approves of Korematsu and is able to use it.

        With that being said, by my desk I keep a transcript of the letter my Grandpa brought with him to the FBI the day he turned himself in. Even at 21 and truly facing an entire nation against him (including most of his own community), it is clear from his letter he was anything but hysterical. He opposed everything that the executive order stood for but he remained calm, collected, and courageous. Most importantly I think, he remained willing to try to change the minds of those who supported it through vigorous debate.

        1. SHG Post author

          Your grandpa wasn’t a hero for what he suffered, but for how he endured it. I think Elie’s assertion isn’t just hyperbolic, but absurd. There were 50 million voters, and a great many issues, which alone or in combination gave rise to the outcome. To ascribe specific malevolent motives to all of them is silly.

          I speculate that 10-20% of Trump voters are hard-core to relativist racists, etc. The other 80-90% reflect disatisaction with politics in general, or Clinton and her progressive policies in particular. To progressives, anyone who didn’t put their agenda of race and gender, etc., ahead of all else, are, by definition racist and sexist, and so they scream at everyone that they are racist, sexist, homophobic, etc., driving them further away. And there can be no discussion with anyone who believes in their cause like a religion and who only wants to scream names at others.

          Even so, they do not support this and never did. But the louder the progressives scream names at people, the greater the likelihood they won’t stand up against it. And that’s the disrespect shown your grandpa’s legacy of honor in the face of intolerance.

          1. AH

            There is no question that not everyone who voted for Trump is a racist or a sexist and painting everyone with that brush is not only silly but dangerously counterproductive. I have my own opinions about Trump which are relevant to no one but me, but I also know that when it comes down to a weighing of values, people are always more likely to side for the values that affect them most personally. That does not make them bad people (or racists or sexists or homophobes), or people who would support a Muslim registry. Unfortunately, practically speaking, if the President they elected supports a Muslim registry, even when they don’t, we still may end up in the very same place.

            Regardless, none of that changes the fact that the way to address the issue is not to call people names. The way to get people to care about the values we care about is to make them feel them more personally. But it’s a two way street: if we want people to try to understand us we have to be willing to try to understand them. I try to take that as the lesson from my Grandpa, who refused to ascribe malevolent motives to anyone, including his jailers.

    1. Warrior Woman

      At least there was vindication, even if it was not a Supreme Court reversal. For some details, Korematsu’s conviction was vacated in 1983. http://www.washingtonpost.com/wp-dyn/articles/A22004-2005Apr2.html

      Also according to Wikipedia:
      In 1986 and 1987, Hirabayashi’s convictions on both charges were overturned by the U.S. District Court in Seattle and the Federal Appeals Court, because evidence arose that the Solicitor General’s office (led by Charles H. Fahy) had cited examples of Japanese American sabotage in its 1943–44 Supreme Court arguments, despite having researched and debunked all the rumored incidents. In 2011, the Acting Solicitor General officially confessed error in that regard.

  8. Marty D.

    Since Islam is a religion, as opposed to rac,e wouldn’t the First Amendent rear its ugly head? How about if eeryone who disagreed with suc a registry decared themselves teporary cnerts to Islam to choke up thhe system? I think Motha Mullah sounds goood.

  9. B. McLeod

    The Roman Republic had the Senate and the Consultum Ultimum. We have our Supreme Court and cases like Korematsu. Both are simply mechanisms by which society’s powerful get permission to disregard the laws and constitution when that is thought to be necessary to meet some dire threat. More recently, we have the blind eye which the courts uniformly turned to the warrantless kidnappings known as “extraordinary rendition.” Same damned thing, but at least without affirmatively saying it was OK in that instance. Get the public scared enough and it can happen. I think Scalia was spot-on when he said it will happen again.

  10. Hal

    “*I’m not sure that Elie likes me anymore.”

    For the record, counselor, I think you’re “likable enough”.

      1. B. McLeod

        Like or dislike. It may be only in our era that people strive to form this conclusion solely according to views posted on blog sites, without consideration of any other dimension. If X saved a kitten from being run over yesterday, donated to DAV and St. Jude’s, came up with a cure for cancer, wrote a popular song, solved global warming and ended world hunger, but also posted a comment “progressive liberals” personally disagreed with, then X is a primitive, racist, xenophobic, misogynist, bigoted, troglodyte bastard (and almost certainly banned from ABA Journal). Yet, sometimes that bastard’s comments may be useful, or perhaps even necessary (at least where they aren’t banned).

  11. Jeff Gamso

    Since nobody else has (I’ve been watching), I’ll take the scholarly role and point out that SCOTUS itself has explained, and unanimously repeated just last month in Bosse v. Oklahoma (the version I’m quoting), why Feldman is wrong.

    “’Our decisions remain binding precedent until we see fit to reconsider them, regardless of
    whether subsequent cases have raised doubts about their continuing vitality.’ Hohn v. United States, 524 U. S. 236, 252–253 (1998).”

    Three generations of Harvard profs is clearly enough.

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