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July 12, 2006
Okay, Not Black, Then
So I don’t really see the Court as gung-ho. Another thing Douglas says is that he initially voted against the government in Korematsu but later changed his mind and withdrew his dissent. And while I may have been wrong about Black, Douglas does say that Rutledge “was less clear, but went along” and that Korematsu was “a bothersome case, troublesome case … very much discussed, very much considered, very much debated up and down the halls of, the corridors of the Court.” In that environment, I do think that more candor by the Solicitor General’s office could have made a difference. Douglas and Rutledge’s votes were in play.
On the two specific points I mention—the fact that DeWitt’s assertion that sifting the loyal from the disloyal was based on racism and not time considerations, and the fact that DeWitt’s report contained known falsehoods, I continue to think there’s some significance here. First, there’s a world of difference between a fact such as DeWitt’s racism 1) being common knowledge (as it may have been), and 2) being asserted by one party to the case (as it was), and 3) being conceded by the opposing party (as it was not). There’s a difference in that it’s easier for a judge who wants to ignore it to say “Oh, that’s just a newspaper report not subject to adversarial testing,” or “Oh, that’s just one litigant’s position.” I’m not saying the Justices in the majority didn’t want to ignore it—it was an uncomfortable fact. I’m just saying that denial is easier under some circumstances than others, and the Solicitor General made it easier than it needed to be. There's also, of course, an important difference between a decision that is made by a racist and a decision that is based on racism. That the assertions about the impossibility of sorting were the latter and not the former is what the Solicitor General could have disclosed but didn't.
Second, Eric (in a post) and Jerry (in a comment) argue that the allegations about ship-to-shore transmissions can’t be that significant because the Court unanimously upheld the curfew orders in Hirabayashi, when those allegations weren’t present. But I think it’s pretty obvious that the Justices felt a lesser showing was needed to support the curfew because it imposed a lesser burden on those affected—that, presumably, is why there were dissents in Korematsu but not Hirabayashi. So again, it seems to me that Rutledge and Douglas might have been swayed had the Solicitor General distanced himself from the allegations in the brief in a more candid way. But I freely admit this is all counterfactual speculation, which is why I'm a little puzzled at the assertions that there are definitive answers.
Eric also notes that I haven’t responded to his second comment, which asks why I view Korematsu through the legitimizing lens of judicial deference to military judgments rather than the de-legitimizing lens of the domestic imposition of burdens on American citizens solely because of their ancestry. Let me try.
When I say that a decision is legitimate, I mean that it represents a reasonable choice (between deference, non-deference, and “anti-deference”) in light of the factors present that suggest one or another stance is appropriate. From this perspective, I said, most decisions are legitimate. (David (in a comment) suggests that this fact shows only that my concept of legitimacy is too weak to be useful. I don’t think it should be the last step in analysis (which is why I distinguish it from correctness), but I think it is useful in distinguishing, say, Roe (legitimate) from Morrison, Garrett, or Adarand (illegitimate). (I do argue for this, rather than simply asserting it, in the book.) Korematsu, I said, is probably legitimate because a claim of military necessity is something that courts aren’t very good at evaluating, and therefore it’s a factor militating in favor of deference.
That’s not to say that there aren’t factors pointing in the other direction. The fact that a racial group has been singled out is certainly a factor suggesting that courts should not defer. My point is that when you have factors pointing in different directions, different resolutions of the conflict are probably all legitimate (although it proves interesting to compare the hierarchies that Justices construct in different cases). So it would of course also have been legitimate for the Court to say that it couldn’t take the claims of necessity at face value. Again, though, this would have been a good deal easier if the Court had been given evidence that the actual decision was made on the basis of racism, rather than merely that it was made by racists.
This is the end of my week of guest blogging, which has been both fun and educational. If Eric doesn’t mind, I’ll make one more post tomorrow on Korematsu and Guantanamo, which I hope will show that I am not, in fact, a fan of executive detention. In case anyone was wondering.
Posted by at July 12, 2006 6:34 PM
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Comments
Hi, Kim. Interesting posts. I think it's intriguing, although I'm not ready to buy into it yet, that Korematsu comes out as "legitimate" under your theory. That indicates that your theory may not be suffering from any fudge factors being applied on the side of legitimacy. But I'm troubled by the fact that, so far as I can tell, there are no key "liberal" decisions that come out as illegitimate under your theory. Are there any? If it's all "conservative" decisions that are de-legitimized, isn't that a bit suspicious for a politically neutral theory, and do you have an explanation for what might be causing that?
Posted by: Bruce Boyden at July 13, 2006 10:35 AM
Hi, Bruce. It's a good question. I can't actually think of any significant "liberal" decisions that come out as illegitimate. But there are also very few that come out as required, so that the alternative would be illegitimate. The reason that I don't find them illegitimate is probably that as a general matter, I think that political weakness on the part of a burdened group is a factor suggesting less deference, so judicial interventions on behalf of politically weak groups generally get counted as legitimate. And that's generally what "liberal activism" is.
On the other hand, there aren't that many illegitimate "conservative" decisions either. The main point of the book is that the Court is very seldom truly activist, and instead of tossing that word around whenever there's a decision we disagree with, we should be trying to have a constructive discussion of why deference is or isn't appropriate. Morrison/Lopez and Garrett/Kimel are a bit of a special case--they look legitimate if you believe that the meaning of the Constitution is identical to the doctrine that the Court has created. I don't believe that--I think it's a serious conceptual error--so I call them illegitimate. The only recent "conservative" decision I'm entirely comfortable calling illegitimate is Adarand (or Gratz--basically, strict scrutiny for affirmative action). I just don't see any justification for an anti-deferential stance there. I also think Bush v. Gore is illegitimate, though in a kind of complicated way. I believe that the Justices in the majority felt that their anti-deferential approach was justified because they were dealing with state actors who had shown that they were operating in bad faith. Which is a reasonable principle. The problem with Bush v. Gore is that judges shouldn't be making that determination on a case-by-case basis, because it's invariably affected by ideology.
Posted by: Kim at July 13, 2006 1:33 PM