Drake Law School Professor Mark Kende has put up another post in our continuing exchange over the question of whether Justice Thomas supports the Supreme Court’s notorious decision in Korematsu v. United States (1944), which upheld the internment of over 100,000 Japanese-Americans during World War II. Mark continues to claim that Thomas supports Korematsu, while I remain unconvinced. For links to all of the previous arguments by both sides, see my last post on this issue.

By this point, I think both of us have stated our positions at some length, and we have gone over the admittedly limited available evidence fairly thoroughly. Short of unearthing a definitive statement of his views from Thomas himself, there may not be much more we can say.

In the meantime, I want to to clear up a misinterpretation of my position in Mark’s most recent response – a mistake that I myself am partly responsible for. In earlier posts in the series, I noted that Thomas’ deference to the use of racial classifications in the prison context in Johnson v. California (2005) does not prove that he would also approve of its use in Korematsu because “the Japanese-Americans interned [during World War II] 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.” Mark correctly points out that Fred Korematsu and a few of the others had in fact been convicted of violating military orders requiring their internment and (less often) other crimes.

I am, of course, aware of Korematsu’s conviction. My point, however, was that the internment itself was not a punishment for any crime, and conviction was not a prerequisite for being interned. Japanese-Americans living on the West Coast were rounded up purely based on their race, not based on whether they had been convicted of a crime or charged with one. That made their status legally different from that of prisoners incarcerated because they had been charged and convicted, and therefore (at least according to longstanding Supreme Court precedent) have diminished constitutional rights as a result. I am sorry I didn’t make this point as clearly as I should have in my earlier post, thereby causing Mark to misinterpret me.

In the case of Korematsu himself, the constitutional question at issue was not (as in Johnson) the constitutionality of his treatment in prison after being duly convicted of a crime, but the constitutionality of the law under which he was convicted in the first place (the race-based internment order). There is an obvious difference between the two situations. I think Mark would agree that, just because Thomas is willing to defer to prison authorities who use racial segregation to manage already incarcerated inmates, that does not mean that he would similarly uphold laws that impose racial segregation outside of prison and impose prison sentences as punishment for disobedience. This obvious distinction is almost certainly the reason why, as I previously noted, Justice Scalia both joined Thomas’ dissent in Johnson and also condemned the Court’s ruling in Korematsu.

Mark also argues, given Thomas’ well-known willingness to ” write… openly about his disagreement with precedent or with other commonly held views,” he would not have cited Korematsu in various opinions without indicating his disagreement with that precedent, if he did indeed disagree with it. As I noted previously, Thomas’ citations to Korematsu have been limited to references to its largely uncontroversial elements (that strict scrutiny applies to racial classifications, and that national security is a “compelling interest” that can potentially pass the strict scrutiny test). Moreover, Thomas’ lack of reticence cuts both ways. If he is indeed eager to express his disagreements with “commonly held views,” even when it is not essential to the outcome of the case he is considering, surely he would have taken advantage of at least one of the opportunities he has had to express his disagreement with the widely held view that Korematsu is wrong (and not just wrong, but one of the worst decisions in Supreme Court history). Even more tellingly, a justice so willing to express dissent from conventional wisdom would not have joined the part of Justice Sandra Day O’Connor’s opinion for the Court in Adarand Constructors v. Pena (1995), where she harshly criticized Korematsu.

Mark cannot have it both ways here. If Thomas is so eager to express his views on past precedents that he would surely have seized on an opportunity to denounce Korematsu had he opposed it, then it is equally true that he would have surely have endorsed it if he supported it. At the very least, he would take care not to endorse language in other justices’ opinions that runs counter to his own views on the subject.

We may never know Thomas’ views on Korematsu for certain, until he himself chooses to express them more clearly. So far, however, the available evidence suggests that he opposes it.

UPDATE: Eric Muller, a leading academic expert on Korematsu comments on our debate here. Muller suggests that what we “are actually disagreeing about, which is not Justice Thomas’s position on the rightness or wrongness of Korematsu but Justice Thomas’s views on executive power in wartime and of the Court’s role (or lack of role) in checking it.” But, as I said in my first post in this exchange, I don’t deny that Thomas has an overly broad view of wartime executive power and an overly narrow view of the Court’s role in checking in it. The question is whether his errors in that regard are severe enough to justify Korematsu. After all, as I also noted in my first post in this debate, few if any judges and legal scholars have a broader view of wartime executive power than Thomas’ former clerk John Yoo. Yet Yoo still opposes Korematsu.

Muller believes that Thomas would support the result in Korematsu based on his citation to Hirabayashi v. United States in his dissent in Hamdi, where Thomas cited it (as well as other cases) for the proposition that judicial deference to the president on war powers issues “extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate.” But in that very same paragraph, Thomas also approvingly quotes language from previous cases noting that a wartime detention by the president can still be invalidated if the court comes to a “clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted.” Given the enormous scale of the detentions that it authorized and the slender nature of the evidence supposedly justifying them, Korematsu seems like a blatant example of a case where such a “conviction” would be warranted, if it ever could be. Moreover, the point at issue in Korematsu was not just a purely factual determination, but whether the interests claimed by the government (even under a deferential evaluation of the supposed facts) were enough to justify a severe, ongoing restriction on the liberty of many thousands of people purely on the basis of race. If John Yoo (who also favors broad judicial deference to the president on wartime factual issues) answers that question in the negative, Thomas
could as well.

Muller also chides both Kende and me for conflating the legality of forcible removal (which, technically was the only point at issue in Korematsu) with the legality of detention in concentration camps (which technically was not). I indeed was not as careful as I should have been on this. But, as a practical matter, upholding removal meant upholding the forcible detention to which most of those removed had been subjected during the two years that had passed between the beginning of the internment and the Supreme Court’s ruling.