In an interesting recent article, and a post at Prawfsblawg, legal scholar Mark Kende argues that Justice Clarence Thomas approves of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the internment of over 100,000 Japanese-Americans during World War II.

Here is the article abstract:

The U.S. Supreme Court’s infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

While there is much wrong with Thomas’ extremely broad interpretation of presidential war powers, and also with his dissent in Johnson, nothing he said in those opinions indicates that he supports the result in Korematsu, or would be logically inconsistent with concluding that Korematsu was wrong.

I. Thomas’ jurisprudence on wartime executive power and Korematsu.

In his dissent in Hamdi, one of the first Guantanamo cases, Thomas argued that the president has broad power to detain and hold persons he believes to be enemy combatants in wartime. Thus, Thomas opposed all but the most minimal judicial review in such cases. I think Thomas got this issue wrong, for reasons articulated by the majority, and Justice Scalia. But, obviously, the vast majority of the Japanese-Americans interned during World War II were not enemy combatants or even alleged to be such by the government. Moreover, unlike the alleged enemy combatants detained at Guantanamo, the Japanese-Americans were taken into custody in the United States, far away from any war zone, and without any indication that they were aiding the enemy in any way. Thomas’ opinion suggests that the president “may have inherent authority to detain those arrayed against our troops.” But the Japanese-Americans detained during World War II clearly were not “arrayed against our troops,” nor did the government even claim that they were.

Kende also notes that Thomas has cited Korematsu favorably in his concurring opinion in Fisher v. University of Texas and his dissent in Grutter v. Bollinger. In both cases, however, he cited Korematsu only for the relatively uncontroversial proposition that national security is a “compelling state interest” that could potentially justify the use of racial classifications under the tight strict scrutiny test that applies to racial discrimination by government. For example, in his Fisher opinion he wrote as follows:

The Court first articulated the strict-scrutiny standard in Korematsu v. United States…. There, we held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can….” Aside from Grutter, the Court has recognized only two instances in which a “[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation was at war with Japan and that the order had “a definite and close relationship to the prevention of espionage and sabotage.” Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible…

Thomas’ citation of Korematsu on this point is entirely correct; Korematsu was indeed the Court’s first decision holding that strict scrutiny applies to racial classifications. And this reference occurs in a passage where Thomas is merely summarizing what the Court has done in the past, without necessarily indicating agreement with its rulings.

If you believe that any compelling interests exist that can justify the use of racial classifications by government, it is hard to deny that national security in wartime is one of them. Accepting that premise in no way requires you to support the result in Korematsu, which is still open to attack on two other powerful grounds: that the Court failed to apply the “narrow tailoring” requirement of the strict scrutiny standard, and that the government deceived the court about key aspects of the evidence. One can easily conclude, as I have, that the Court should repudiate Korematsu because of its grave errors on these two points, without denying that there might be extreme cases where the government might be justified in using racial classifications in wartime.

II. Thomas’ dissent in Johnson v. California.

In his dissent in Johnson, Thomas did indeed vote to uphold a California policy of temporary racial segregation of newly assigned prisoners justified by a claimed need to prevent racial violence. I think Thomas got this issue wrong, and Kende is absolutely correct in pointing out that Thomas’ position here is at odds with his commitment to color-blindness in virtually all other cases. But his opinion, joined by Justice Scalia, was premised on longstanding precedent under which incarcerated prisoners have greatly diminished constitutional rights in a wide range of areas, including speech and religion, and judges give broad deference to prison authorities. By contrast, the Japanese-Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one. Thus, nothing in Thomas’ opinion in Johnson commits him to approving the result in Korematsu.

Justice Scalia, who joined Thomas’ opinion in Johnson, has also denounced Korematsu, calling it a “wrong” decision produced by wartime “panic.” He sees no contradiction between dissenting in Johnson and opposing Korematsu, and Thomas probably doesn’t either.

III. What if Thomas agrees with former clerk John Yoo’s position on Korematsu?

Kende briefly notes some similarities between Thomas’ views on presidential war powers and those of his former clerk John Yoo, one of the most extreme academic advocates of ultra-broad presidential authority over foreign policy. There are indeed some parallels between Yoo’s positions in this field and Thomas’; both advocate very broad presidential power.

I am no fan of Yoo’s theories of presidential power myself. It is unfortunate that Thomas has gone as far as he has in the same misguided direction. But it is hard to fault Yoo’s position on Korematsu. He has denounced the World War II internment of Japanese-Americans as “a terrible constitutional error” because of its “wholesale targeting of a nationality.” if Thomas really does share Yoo’s view of Korematsu, that would mean he is against it.

Finally, as Kende notes, Thomas joined Justice Sandra Day O’Connor’s majority opinion in Adarand Constructors v. Pena (1995), which is harshly critical of Korematsu. Kende suggests that Thomas joined the opinion despite disagreeing with its statements on Korematsu. Justices do sometimes join opinions that contain statements they disagree with, either for the sake of maintaining a united front, or because they consider the disagreement unimportant. But Thomas is usually among the justices least willing to suppress his own views for the sake of consensus. If he disagreed with O’Connor’s position on this important precedent, he would likely have said so in his concurring opinion in Adarand. He did in fact choose not to join other parts of O’Connor’s opinion because he disagreed with them.

Thomas has not made any definitive statement of his views on Korematsu. It is impossible to categorically demonstrate he does not support it. But the available evidence fails to prove the charge that he does, and some of it strongly suggests the opposite.