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Today in Supreme Court History

Today in Supreme Court History: July 3, 1941

|The Volokh Conspiracy |

7/3/1941: Chief Justice Harlan Fiske Stone takes oath.

Chief Justice Harlan Fiske Stone

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Today in Supreme Court History

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5 responses to “Today in Supreme Court History: July 3, 1941

  1. Korematsu!

    1. The best take on Korematsu was probably written by Judge Posner, who argued that while the decision was wrong … put yourself in those judges shoes. The United States had just declared war. The US is under invasion. Are you, a justice, already threatened by court packing, going to take the political risk of interfering with the war effort, no matter how dumb it is? Probably not, right?

      In essence, it is important to understand why the judges made that decision. And it’s important to understand that modern judges are not immune to that sort of thinking. It is hypocritical for judges to say Korematsu was bad and then turn around and reveal yourself to be motivated by the same political pressures those judges were.

      In short, Judges are human. They are not going to interfere with WWII and potentially kill civilians, even if the government is blatantly violating civil rights. Understanding that allows one to understand why we need a less activist judiciary and to base your thinking on rational ideas and not abstract theories. If we are all pragmatists, we should say so.

      I liked that take of the decision. Better than, the judges in Korematsu were awful, but we are better because reasons.

      1. The decision was unpopular. As someone put it, “Stone was alone on the Court, but he won a wider majority”. Douglas, seeing this, tried to backtrack-explain away-mischaracterize his concurrence.

        And no, the Court was not afraid of being packed. This was 1941, not 1936.

      2. Akkk.
        Your comment prompted me to go to Posner’s interview on Radiolab. Of course he is thrown softballs by a deferential young reporter — Posner badly needs for once in his life to be actually challenged — and his view is even worse than you say. He says rounding up Japanese Americans was the logical thing to do. He would have been a useful judge for Hitler, ok’ing the rounding up of Jews.

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