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July 11, 2006

Some Thoughts on Korematsu's "Legitimacy"

im argues below that Korematsu was a wrong yet legitimate Supreme Court decision because it sprang from judicial deference to military decisionmaking, and "deference to military decisionmaking really makes a lot of sense." That is, the Court's deferential posture was appropriate; it produced an erroneous decision because the government misled the Court about the degree of military risk that Japanese Americans posed. (It was on the basis of this misrepresentation that a federal court in 1983 vacated Korematsu's 40-year-old conviction for violating the evacuation order.)

Naturally this is something about which I'll have a word or two to say. Two quick points, to start:

(1) While I don't dispute that there are penty of circumstances in which "judicial deference to military decisionmaking really makes a lot of sense," I'm not at all persuaded that this is a legitimizing principle for cases in which the military is making decisions about the freedom of movement, and indeed the incarceration, of U.S. citizens on U.S. territory. So I'd like to hear a bit more from Kim on that point: why is "judicial deference to military decisionmaking" the central and legitimizing principle in Korematsu? Given that the case was about the domestic imposition of special burdens on American citizens chosen solely on the basis of ancestry, why shouldn't the general (and presumptively delegitimizing) principle be the very disapproval of race-based government action that the Korematsu opinion itself mentions?

(2) Essential to Kim's description of Korematsu as "legitimate" is the idea that if the Western Defense Command (with the Justice Department's connivance) had not falsely represented to the Court that Japanese Americans were involved in shore-to-ship communications with Japanese ships and subs, and had not falsely represented to the Court that it had undertaken no individual loyalty assessments because it didn't have the time, the Court would have gone the other way in Korematsu and condemned the mass exclusion of Japanese Americans from the West Coast as unconstitutional. Stated more simply, Kim's argument depends on a very strong claim of causation: it was the government's misrepresentations to the Court in Korematsu that led it to reach the result it reached.

This is a claim that Jerry Kang has pretty much demolished. The best evidence is that the Supreme Court structured its adjudications of the Japanese American cases to avoid condemning the mass exclusion as unconstitutional; there's really no evidence at all that the government's misrepresentations to the Court were what led a majority of the Justices to approve of mass exclusion as constitutional.

In the debate over Korematsu's "legitimacy" (as distinguished from its "wrongness"), this strikes me as a huge strike against it.

Posted by Eric at July 11, 2006 8:36 AM

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Posted by: Simon Spero at July 11, 2006 3:45 PM