Drake Law School Professor Mark Kende has posted a response to my critique of his argument that Justice Clarence Thomas supports the Supreme Court’s infamous decision in Korematsu v. United States, which upheld the World War II-era internment of over 100,000 Japanese-Americans.

In my previous post, I emphasized that Thomas’ occasional positive citations to Korematsu are limited to a largely uncontroversial part of its holding: that racial classifications are subject to strict scrutiny and that national security is a “compelling” government interest that might sometimes justify racial discrimination in extreme circumstances. By contrast, he has never said that the Korematsu Court correctly applied that rule to the facts of the case before it. Kende responds as follows:

[I]n the Fisher v. Texas affirmative action [case], Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny. Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.” But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts). This is odd. For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.” By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher. Thomas could have cited other cases.

There is no contradiction here. I did not claim that Thomas, in this passage, suppressed his view on Korematsu for the sake of consensus. He simply chose not to give a comprehensive analysis of the rightness (or lack thereof) of Korematsu, because he didn’t need to do so to make the very limited point this passage was devoted to. All he did was 1) cite Korematsu for the mostly uncontroversial proposition that national security is a compelling state interest (the supposed threat of espionage and sabotage is of course a national security interest), and 2) summarize its holding in a passage whose main function is to summarize past cases where the Supreme Court held that a particular interest is important enough to qualify as compelling for strict scrutiny purposes. He could perhaps have cited a different case for the former proposition. But, as Thomas himself explained, he cited Korematsu because it was both the first case to hold that strict scrutiny applies to racial classifications and the first to conclude that national security was an important enough interest to pass strict scrutiny.

Kende also argues that Thomas’ dissent in Hamdi v. Rumsfeld can’t be distinguished from Korematsu on the basis that the former involved alleged enemy combatants, whereas the latter involved civilians who were not enemy combatants or even claimed to be such. Kende suggests that “[t]he alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant.” Obviously, the issue in Hamdi was not just the status of a single enemy combatant, but the way alleged enemy combatants should be handled in the War on Terror more generally (just as the rule in Korematsu was not limited to Fred Korematsu himself). Moreover, there are obvious differences between alleged enemy combatants and ordinary civilians distinguished from the rest of the population only by race or national origin. The latter both have stronger legal rights and are less likely to be threats to national security than the former.

Kende also suggests that Thomas’ deference to racial classifications by prison officials in Johnson v. California would require him to deter to the government in Korematsu because “Japanese-American internment camps were… the essential equivalent of prisons.” The camps were certainly prison-like in the sense that their inmates were not free to leave at will. But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision.

Finally, Kende argues that Thomas’ failure to cite Korematsu in his dissent in Hamdi is somehow an indication that he agrees with the former. He suggests that Thomas chose not to cite it, despite its potential relevance, because he did not want to reveal the fact that he agreed with it. If Thomas really were intent on hiding his supposed agreement with Korematsu by avoiding citation to it, one would think that he would also avoid citing it in other opinions. Yet, as Kende emphasizes he did cite it in at least two other cases. Moreover, Thomas’ omission of Korematsu from the discussion of precedents supporting his position in Hamdi could just as easily be construed as due to disagreement with the case. Unlike in Fisher, where the relevant part of Korematsu was largely uncontroversial, in Hamdi the relevant part was the Court’s deference to the executive on the question of whether the Japanese-Americans really posed a serious enough threat to justify racially-based internment. Quite possibly, Thomas chose not to cite the Court’s analysis on this point because he thought it was wrong.