Supreme Court

The Court of History

Where does it sit, and what cases does it hear?

|The Volokh Conspiracy |

As I mentioned earlier, today's decision in Trump v. Hawaii makes an interesting statement about the Court's much-maligned precedent in Korematsu: that it "has been overruled in the court of history." For context, here is the full paragraph:

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." 323 U. S., at 248 (Jackson, J., dissenting).

Several of you have written in about "the court of history." In the context of Korematsu, the phrase dates back to at least 1982, when the U.S. Commission on Wartime Relocation and Internment of Civilians declared that "Today the decision in Korematsu lies overruled in the court of history." (See p. 238 of the report.)

But it is also not the first time that the Court has used the phrase. Two dissenting opinions in labor law cases, one from Justice Breyer in BE & K Const. Co. v. N.L.R.B. (2002), and one from Justice Goldberg in United Mine Workers v. Pennington (1965) refer to a dissenting opinion by Justice Brandeis in Duplex Printing Press v. Deering that "carried the day in the courts of history" when Congress passed, and the Supreme Court interpreted, the Norris-LaGuardia Act and the National Labor Relations Act.

But the more important, and first, Supreme Court reference to the "court of history" is in New York Times v. Sullivan, where the majority has to deal with the infamous founding-era practice of prosecutions under the federal Sedition Act:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 **724 Stat. 802, accompanied by H.R.Rep.No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter 'which no one now doubts.' Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: 'I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.' Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U.S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288—289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899—900; Chafee, Free Speech in the United States (1942), pp. 27—28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

The one earlier judicial reference I could find was in a dissent to the Pennsylvania Supreme Court's 1943 decision in Commonwealth v. Vallone, concerning the court of history's judgment about whether President George Washington was financially corrupt. So apparently the "court of history" has an eclectic jurisdiction.

NEXT: Carpenter Supreme Court Decision Should Lead To Rethinking Ross Ulbricht's Conviction

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Pedantry alert: I suspect that the next-to-last word should be “eclectic”. Or perhaps, “electric”?! I actually like the second alternative.

    1. Damn, beat me to it! So far as I know, of the Founding Generation only Mr. Franklin had an electric jurisdiction.

  2. With the Japanese-American exclusion and internment, as with the Sedition Act, Congress and the President adopted policies which Supreme Court justices* ruled constitutional – then later, Congress and the President said they’d been wrong and paid compensation to the victims.

    Which left the Justices high and dry – saying Congress and the President could do stuff which Congress and the President later apologized for doing and admitted was unconstitutional.

    So that would be how the “court of history” worked out in that context – “OK, we went out on a limb and upheld these policies, then Congress and the President sawed the limb out from under us by saying they’d been acting unconstitutionally.”

    *With the Sedition Act, it was Supreme Court justices riding circuit, not the full court, which upheld the statute.

  3. To the extent that a “court of history” exists, it can be nothing more than another futile forum where (in theory) factually substantiated (more or less) propositions are perfectly framed and presented for intelligent consideration by reasonable persons of high integrity.

    Some questions that a COH might judge: Were Boadicea and her sisters really outraged by lusty young Roman officers in the house-arrest situation? Was Boadicea well advised to lead a massive revolt and kill so many Roman civilians, including all those who sought sanctuary in the London Temple?

    Did Queen B really understand that her tribal warriors, even though they outnumbered the available Roman legions in Britain by three to one, carried wicked weapons, and decorated themselves in fierce costumes,
    were no match at all for professional Roman soldiers?

    Did Sacajawea really do anything but lead Lewis and Clark back to her tribe’s homeland, which after all was rather a significant detour to the explorers’ objective of reaching the Pacific Ocean?

    Did ANY of Franklin Delano Roosevelt’s alphabet agencies and stimulus programs (other than the whopping big war) do anything much to alleviate the Great Depression? Really?

    1. Well said.

    2. I think the spelling consensus these days is Boudicca, fwiw.

  4. From the 1943 Pennsylvania case: “One of Lincoln’s best known statements begins with these words: “If I should read, much less answer, all the attacks made upon me this shop might as well be closed for any other business.” ”

    Very appropriate to today’s president, for which that may be the real goal.

  5. Great question, but easy to answer. I’ve stated before that the “living Constitutionalist” view is, in essence, that the Constitution can mean anything that the liberal intelligentsia thinks it ought to mean — at least, once they have secured a handful of public opinion polls showing a bare majority in agreement with the underlying prescriptive viewpoint. That’s the formula: liberal intelligentsia + public opinion polls = Constitutional requirement.

    So the court of history sits in the institutions of academia, news media, and Hollywood, all dominated by leftists. They hear whichever cases they wish.

    If the US got into a nuclear or other war with, say, the Russians or someone else, and our cities lay smoldering to an extent that made Pearl Harbor look like a picnic, you can guarantee that Korematsu and worse would come roaring right back. War is war.

    1. The reason they think the Constitution is a living document is because they’re so eager for it to die.

      Democrats will do everything possible to protect the Constitution.
      Oops, I misspelled “Prevent.”

  6. In his effort to distinguish Korematsu, the Chief Justice mischaracterizes its facts. He says that the order at issue in that case authorized internment “solely and explicitly on the basis of race.” That is not the case — it applied only to people of “Japanese ancestry,” and not other Asians. Had Roberts acknowledged this distinction, he would have had to confront more directly the justification for that policy, i.e., that the detained persons were former citizens, or were descended from citizens, of a country with whom we were at war. While I totally reject that justification, it sounds, if anything, like a more rational basis than that articulated by the administration for the travel ban, and acknowledging that truth would have made Korematsu more difficult to distinguish.
    The only even arguably distinguishable difference between the 2 cases is that the order at issue in Korematsu, unlike this case, was directed at U.S. citizens. In essence, Roberts is saying that if the government puts up a fig leaf of rationality, it may violate equal protection principles and the Establishment Clause with impunity when dealing with non-citizens, even if it cannot do so for citizens.

    1. “The only even arguably distinguishable difference between the 2 cases is that the order at issue in Korematsu, unlike this case, was directed at U.S. citizens.”

      …and the travel ban is directed at citizens of other countries, who have (mostly?) never been to the U. S. or acquired any rights of residence there.

  7. Japanese internment a bit like dropping A-bombs on Japan. 40 years later, people saying it was a bad idea. My father fought in the Pacific; if he was still living, I’d ask what his opinion was of both

    1. Congress could have suspended habeas corpus for national-security risks – suspension being the only *specific* remedy allowing detention without trial of U. S. citizens. With invading troops in U. S. territories (like the then-territory of the Philippines) I suppose it could be said to be a time of invasion.

  8. If presented with the issue for the first time, today’s Supreme Court would rule the same way that it did in Korematsu, along the same lineup as with the travel ban decision.

  9. Visited a new Japanese Internment Memorial Park near Bremerton, WA, this past Sunday. That was a nasty and shameful page of American history, sure enough.

    Interestingly, the California Supreme Court ruled in favor of the Japanese internment policy with Chief Justice Earl Warren writing the majority opinion. He caught liberalism after the A-bomb made it safe to be liberal.

  10. I find myself not as eager as others to jump on board with criticism of the “court of history” finesse employed to deflect from the dissent’s focus on Korematsu. If the Court were to begin weaving the phrase into “real” law (i.e., a means of analysis of past decisions), this could be very problematic, but as a mechanism for politely poking holes in a dissent or other argument, it seems to have a certain utility.

Please to post comments

Comments are closed.