Legal scholar Peter Irons, a leading academic expert on the Japanese internment cases, has written a powerful article calling on the Supreme Court to explicitly repudiate those decisions [HT: Constitutional Law Prof blog]. Those notorious cases, most notably Korematsu v. United States, upheld the forcible detention of over 100,000 Japanese-Americans in internment camps during World War II, as well as various other racially discriminatory policies against them.
I. The Case for Repudiation.
As Irons notes, the overwhelming majority of legal scholars and jurists now recognize that the Japanese internment cases were outrageous injustices. They are among the most reviled decisions in Supreme Court history. In 1988, Congress and President Ronald Reagan formally denounced the internment, apologized to the surviving victims, and enacted a law compensating them for their losses (albeit, inadequately, given that each was paid only $20,000 in compensation for some three years of imprisonment, and the loss of large amounts of income and property). The Supreme Court itself has made negative references to these cases in more recent decisions, but has never formally overruled any of them. While lawyers today would be ill-advised to rely on these cases in their arguments, they are technically still on the books, and could potentially be used as precedents in the future – especially if changes in public or elite opinion make racially discriminatory war policies more popular than they are now.
In the article, Irons complies extensive evidence that federal government officials – including the Solicitor General of the United States – deceived the Supreme Court about the extent of the supposed security threat posed by the Japanese-Americans. He also cites evidence (long recognized by other scholars) that racism was in fact the most important motive for the internment policy. For example, General John DeWitt, the official who actually issued the internment order upheld in Korematsu, wrote that the Japanese had to be expelled from the West Coast because they were an “enemy race” whose “racial characteristics” made them untrustworthy. This statement, and others like it, directly contradicts the Korematsu majority’s statement that ” Korematsu was not excluded from the [West Coast] because of hostility to him or his race.”
II. What Kind of Repudiation do We Want?
Overall, the case for repudiating these decisions is very strong. But there are two additional issues that must be considered.
First, as Irons recognizes, any statement of repudiation by the Court would not be binding precedent because the original interment cases are today moot and there is no present litigation raising the same issues. Even if all nine justices issued a statement denouncing Korematsu, that would not officially overrule it or necessarily prevent government lawyers from citing it in future cases. I don’t think this is a decisive objection to Irons’ proposal. A formal repudiation by the Court would have great symbolic value, even if it isn’t technically legally binding. It would at the very least discourage lower courts and government lawyers from favorably citing these decisions in the future. Still, the difference between a mere public statement and actual overruling of precedent is worth keeping in mind.
Second, we need to ask what exactly it is that the Court would repudiate if it adopted Irons’ idea. The Japanese internment cases stand for at least three distinct, though interrelated, propositions:
1. National security in wartime is an important enough government interest to justify the use of racial classifications in at least some conceivable circumstances. Ironically, Korematsu was the first case in which the Supreme Court stated that racial classifications must be subjected to what we today call “strict scrutiny.” Today, strict scrutiny can only be overcome if the use of racial classifications is “narrowly tailored” to the advancement of a “compelling state interest.” It’s difficult to deny that national defense in wartime is a “compelling state interest,” especially if the Court refuses to overrule precedents such as Grutter v. Bollinger, which hold that the educational benefits of “diversity” in higher education qualify as a compelling interest. Surely wartime national security is at least as important as educational diversity.
2. Second, these cases hold that the judiciary should give Congress and the president broad deference in evaluating their wartime decisions. As the Court put it in Hirabayashi v. United States:
Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.... Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs.
3. Finally, the Court decided that the evidence that Japanese internment was a legitimate military measure was strong enough to pass the appropriate level of judicial scrutiny, especially in light of the supposed need for judicial deference to the executive and Congress.
It makes a big difference whether repudiation of the internment decision means rejection of all three of the above propositions, or just one or two of them. The simplest way to repudiate Korematsu and its companion cases would be to just reject Point 3 above. That’s the issue that the evidence in Irons’ article is most relevant to. But notice that if we leave 1 and 2 intact, it would be constitutionally permissible for the federal government to engage in future wartime racial internments so long as they had better evidence supporting their decision (or perhaps even so long as they didn’t lie about and exaggerate the evidence they have).
For a repudiation of the internment cases to have real bite, it would have to reject Proposition 2 as well as 3. Such a rejection has already partially occurred in the Guantanamo cases, where the justices showed relatively little deference to the president and Congress. In my view, the Court can and should rule that there is no special deference to wartime legislative and executive decisions that infringe on fundamental constitutional rights. The Japanese internment and many other historical examples show that the executive and Congress often cannot be trusted to limit wartime infringements on individual constitutional rights to those that are genuinely required by military necessity. But obviously that idea remains highly controversial both within and outside the Court, and I doubt you could get all nine justices to sign on to it. Certainly not those conservative justices who dissented in the Guantanamo cases in part because they thought the majority did not give sufficient deference to the judgment of the president and Congress.
Setting aside the details of legal doctrine, there is a deep underlying disagreement here between those critics of Korematsu who believe that a measure like the Japanese internment can never be constitutional and those who think that it could potentially be upheld in a case where the government presented much stronger evidence that there was a genuine military necessity that could not be dealt with in any other way.
Despite these caveats, I think a Supreme Court repudiation of the internment cases would have considerable symbolic value. And there is good reason for it to cover Proposition 2 as well as Proposition 3.