Is That Legal?

That your analysis concludes that Korematsu and Lochner are legitimate gives good reason to question the legitimacy of your analysis. One good way to check out an academic theory is to give it a test drive and try it on real cases. Your theory crashed. If those decisions are considered legitimate, then your theory is far too generous in what it calls legitimate, and the theory's legitimacy test would not provide useful information.

1. Endo. I agree that the Court wanted us to remember Endo, not Korematsu. It's not only that the Court avoided deciding Endo on con-law grounds. Far worse, is that it manufactured a lie to shield FDR and Congress of responsibility. Of course, they authorized the camps--millions of dollars of annual funding should suffice.

2. Causation. The smoking gun evidence, as damning as it is, would not have led the Court to do otherwise. I've demonstrated this in Denying Prejudice (UCLA 2005) and Watching the Watchers (L & Contemp Prob 2006).

Here's a cut and paste from a book chapter (copying mostly the Denying Prejudice analysis). The 9th Circuit accepted the causation argument in its Hirabayashi coram nobis case. Here's why they are wrong (sorry about the length, but look at paras 80, 96-97 in particular). Does this change your view?

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1. Evacuation
[79] Recall that the district court in the Hirabayashi coram nobis case had found prejudice on the evacuation issue. In other words, the Supreme Court would have struck down evacuation if only it had the full story. The Ninth Circuit heartily affirmed this finding for the following reasons.
[80] DeWitt’s racism: Who Knew? First, the court suggested that the Su-preme Court had no reason to believe that General DeWitt was racist. Evidence regarding DeWitt’s attitude “was limited primarily to a newspa-per clipping.” Moreover, this evidence was presented by the Japanese Americans and their amici, who were partisans in the litigation. Although we now know that this was “objective and irrefutable proof” of racial bias, according to the Ninth Circuit, the Supreme Court back in the 1940s did not.
[81] This is preposterous. Here is the text of the newspaper clipping ad-dressed above. They are DeWitt’s comments before a House of Repre-sentatives Subcommittee on Naval Affairs, reported in the Hearst’s San Francisco News, April 13, 1943:
I don’t want any Jap back on the Coast . . . . There is no way to determine their loyalty . . . . It makes no difference whether the Japanese is theoreti-cally a citizen—he is still a Japanese. Giving him a piece of paper won’t change him. . . . I don’t care what they do with the Japs as long as they don’t send them back here. A Jap is a Jap.
[82] During the wartime litigation, this article appeared in full in the Ap-pendix of Hirabayashi’s reply brief, was quoted prominently in Yasui’s opening brief, and was also quoted in Korematsu’s brief. It was spe-cifically mentioned by attorney Al Wirin during Yasui’s oral argument. In the Korematsu dissent, Justice Murphy quoted long portions. This passage was not a partisan “spin” of Army policy. Instead, it was a verba-tim quotation by a prominent newspaper, just one month prior to Su-preme Court oral argument, and never disclaimed by DeWitt.
[83] In addition, Korematsu referred explicitly to another document equally damning, a letter by DeWitt to the Secretary of War one and a half months prior to evacuation. In it, DeWitt wrote that “the Japanese race is an enemy race” and that regardless of being born in the United States, their “racial strains are undiluted.” Further, “[t]he very fact that no sabo-tage has taken place to date is a disturbing and confirming indication that such action will be taken.”
[84] To avoid confusion, we must remember that the question is not whether the newspaper transcript and the personal letter provide conclu-sive evidence of DeWitt’s racism by the standards of the 1940s or the 1980s or even today. The proper question instead is whether these mate-rials reveal as much about the attitude and reasons for DeWitt’s actions as the original version of the Final Report. Put another way, given that the Supreme Court was made aware of the above, would the language in the original Final Report have altered the Court’s fundamental assessment of DeWitt’s fairness or bias? No, it would not have. As Ronald Reagan's Department of Justice put it to the Ninth Circuit: “General DeWitt’s be-liefs were not concealed from anyone, including the Supreme Court, in 1943 or thereafter.”
[85] The Solicitor General’s Protestations. Second, the Ninth Circuit pointed out that the Supreme Court relied heavily on the claims of Solici-tor General Charles Fahy, who argued exigency as justification. The court thought it unlikely that the Supreme Court “would have reached the same result even if the Solicitor General had advised . . . the Court of the true basis for General DeWitt’s orders . . . .”
[86] On the one hand, this must be right. If the Solicitor General in oral argument confessed that the entire internment juggernaut was manufac-tured by a racist cabal, without a scintilla of military justification, the Su-preme Court would have had great difficulty allowing internment to pro-ceed. This much is revealed by the following exchange between Justice Frankfurter and Solicitor General Fahy in the Korematsu oral argument, quoted by the Ninth Circuit.
MR. JUSTICE FRANKFURTER: Suppose the commanding general, when he issued Order No. 34, had said, in effect, “It is my judgment that, as a matter of security, there is no danger from the Japanese operations; but under cover of war, I had authority to take advantage of my hostility and clear the Japanese from this area.” Suppose he had said that, with that kind of crude candor. It would not have been within his authority, would it?
MR. FAHY: It would not have been.
MR. JUSTICE FRANKFURTER: As I understand the suggestion, it is that, as a matter of law, the report of General DeWitt two years later proved that that was exactly what the situation was. As I understand, that is the legal significance of the argument.
MR. FAHY: That is correct, Your Honor; and the report simply does nothing of the kind.
[87] On the other hand, this is a red herring—the wrong counterfactual. The proper question is what would the Supreme Court have done if the suppressed evidence were made available and if the Solicitor General an-swered questions during oral argument in ways that nevertheless fur-thered his client’s position. Even if the original Final Report were entered into evidence, and even if the memoranda from the FBI, the FCC, and the ONI were also admitted, Fahy would have been clever enough to dis-credit that evidence as irrelevant, not probative, taken out of context, not sufficiently expert, or simply a minority report.
[88] The Korematsu footnote. Third, the Ninth Circuit emphasized the bowdlerized footnote in the Korematsu brief. It pointed out that the Court asked specific questions about that footnote during oral argu-ment, which supposedly demonstrated the Court’s sensitivity to the facts of military exigency. But again, the question is not whether exigency was an important variable to the wartime Court: Of course it was. The question is whether the suppressed evidence would have reversed the Court’s judgment about the existence of that exigency.
[89] More important, the timing is all wrong. Hirabayashi’s case came be-fore Korematsu. This means that the Korematsu brief was not even in exis-tence when Hirabayashi’s case was litigated. So, how could a future mis-leading edit to a footnote that had not yet been written have prejudiced him? The same goes for the deceptive comments by Fahy in an oral ar-gument that had not yet taken place.
[90] Dissent Inference. Fourth, the Ninth Circuit stated that the “divided opinions . . . demonstrate beyond question the importance which the Jus-tices . . . placed upon the position of the government that there was a per-ceived military necessity . . . .” The Ninth Circuit was suggesting that be-cause three Justices in Korematsu dissented even without seeing the sup-pressed evidence, even more Justices would have dissented and consti-tuted a new majority (back in Hirabayashi) if the evidence had been re-vealed.
[91] But precisely the opposite inference can be drawn from the existence of these dissents. Notwithstanding the suppressed evidence, Justice Mur-phy knew enough to call the opinion in Korematsu a “legalization of ra-cism.” In his well-crafted, fully documented opinion, he demolished any arguments based on military necessity under exigent circumstances. He also made explicit mention of evidence and sources that should have car-ried probative weight comparable to the suppressed materials. The sup-pressed evidence would not have substantially added to the persuasive punch that Murphy threw.
[92] Right decision in Endo. Last, the Ninth Circuit asserted that the right outcome in Endo “clearly evidence[s]” that military exigency was critical to the Court’s Hirabayashi and Korematsu decisions. Yet again, this is the wrong question. It is whether the Endo decision demonstrates that the suppressed evidence would have altered the end results. My discussion of Endo suggests just the opposite. All the machinations that the Court de-ployed to make certain that responsibility would be thrusted upon the WRA reveals not the genuine honesty of the Court but its political con-nivance. Endo’s victory in no way reveals a sincere but simple-minded Court duped by executive branch attorneys.
[93] Finally, if one still wonders whether the Court was misled into finding military exigency because of the suppressed evidence, consider all the other arguments expressly raised both by Hirabayashi as well as the gov-ernment as early as 1943. To make crystal clear that time was not of the essence, Hirabayashi emphasized how differently two different groups of people were treated, as compared to the Japanese Americans on the West Coast.
[94] First, Hirabayashi focused attention on Japanese Americans in Ha-waii, which was 1500 miles closer to the Pacific theater of operations, and which had actually been bombed. He provided persuasive details about the Hawaiian population, which, if the government theory was to be be-lieved, posed a far greater threat because persons of Japanese ancestry comprised 34.2 percent of the total population. Hirabayashi also cited laudatory comments about the Japanese made by General Delos C. Emmons, in charge of Hawaii, as early as January 28, 1943. Based on these comparisons, Hirabayashi argued that “the experience in Hawaii demonstrates [that the fear of West Coast invasion was] pure fantasy be-yond a shadow of a doubt.”
[95] Second, Hirabayashi compared the treatment of the Japanese Ameri-cans to the Italian and German resident aliens. Specifically, he claimed that the Attorney General successfully provided individualized loyalty hearings to Italian aliens. Within ten months, the Attorney General deemed 600,000 aliens of Italian origin to be a non-threat; there was no reason why the same could not have been done with the far smaller Japa-nese American population, which comprised mostly citizens. In addition, he provided examples of individualized suits to revoke the citizenship of naturalized Germans as well as examples of how our European allies treated enemy aliens without mass internment. Given this empirical evidence making clear the possibility of individualized loyalty hearings at a brisk pace, it seems ever more difficult to believe that the Supreme Court was genuinely misled about exigent circumstances.
[96] Compare this argument about the possibility of individual hearings with what the government explicitly said in its 1940s Hirabayashi brief. In telling portions, the government argued that individualized hearings would have been “virtually worthless” unless they were preceded by a thorough investigation, and even then, they would be of “doubtful utility” because they would have required the hearing board to “look deep into the mind of a particular Japanese” in making nearly impossible judgments about loyalty. Hard work indeed examining those “inscrutable” Orien-tals.
[97] In addition, in a remarkable embrace of group liabilities (if not rights), the government argued that what was at issue was not individual loyalty. “It is entirely irrelevant, therefore, to assert that the majority of individu-als evacuated were perfectly loyal citizens of the United States.” In-stead, it was action against the entire group, which, as a group, posed a danger. Having read these arguments explicitly in the government’s briefs, would the Supreme Court have really learned something new from the original language of the Final Report?
[98] If the Supreme Court wanted to find that time was not of the essence for the government, there was sufficient material in the government’s own brief from which that finding could have been made. This is not to men-tion numerous additional arguments provided by the Japanese American litigants as well as amici. Put another way, the Supreme Court was not actually blind to what was going on: It was willfully so. Even if the origi-nal version of the Final Report and the suppressed intelligence memo-randa had been made available in Hirabayashi, and even if the original Ko-rematsu brief footnote had appeared in the Hirabayahsi litigation, there is overwhelming evidence that the Supreme Court would have applied the same techniques of segmentation and selective interpretation in order to affirm the convictions and not interfere with the internment machine.

David: I don't think so. I'm pretty convinced that Lochner is not nearly as bad a decision as some would have it, and I think recent scholarship supports me. See, in particular, Howard Gillman's The Constitution Besieged. For Korematsu, if you can convince me that it was unreasonable for the Court to defer to the military's assertions, then I'll agree the decision was illegitimate. If not, I don't think it was. In either case, I don't think it shows a flaw in the model. But I hope you'll read the book and decide on that basis.

Jerry: Thanks. I will read Denying Prejudice more carefully, and I will read Watching the Watchers. I'd also love to see the book, if it's available in any form, and I would be grateful if you could tell me where to find the briefs and oral argument transcripts, which I've had some trouble tracking down.

My basic question here is how it's possible to be as confident as you are about the counterfactual. I don't think that the six Justices in the majority were enthusiastic about the detentions--it doesn't seem consistent with what I know about Black and Rutledge, for starters, and if they were enthusiastic, I would have expected an endorsement of the detentions, which they never gave. (That is, I take the formalistic segmentation to be evidence not of a determination to rule against Korematsu no matter what but of a feeling that the detentions *were* unconstitutional coupled with a lack of the courage (whether institutional or personal) to decide the issue. Am I wrong on that?)

I think more information about the lack of military necessity would have given those Justices more courage--it would have changed things, as you point out in [86]. I don't dispute that there was enough information available to rule against the government as the case was presented--three Justices did. But I'm not convinced that full disclosure by the Justice Department wouldn't have made a difference to the rest. If Fahy had said, "We feel obliged to inform the Court that some of the statements in the Final Report are false" (or even, as Ennis put it, "intentional falsehoods") then surely the case for deference is weaker because this says something not just about the facts but about the trustworthiness of the military. And surely at some point two votes switch. I know you say that this is the wrong counterfactual, but I don't see why my counterfactual can't have Fahy going as far as Ennis wanted to. Please feel free to email me rather than posting a comment if you'd prefer.

Kim: We can all agree that deference to the military about military decisions is appropriate, but deference should not mean abdication of judicial authority. Deference still requires scrutiny of the decisions under review, especially (as Eric points out) military decisions about U.S. citizens on U.S. soil. And yes, it was unreasonable for the Court to defer to the military's assertion that it was necessary to relocate massive numbers of U.S. citizens based solely on their race. If your analysis would defer to that decision, then it sounds like abdication, not deference. Your approach would give the military the blank check that Justice O'Connor rightly condemned. David