Today in Supreme Court History

Today in Supreme Court History: May 11, 1942

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5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).

Gordon Hirabayashi

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  1. Posner probably thinks that was as correct a decision as Korematsu.

    1. That is not what Posner said. Admittedly he wasn’t very clear, but this interpretation of what he said is really only possible if you hadn’t read Posner himself and instead read some motivated reasoning journalist misinterpreting and attacking him over it.

      What Posner said was that the judges came to the conclusions they did in Korematsu because it was WWII, and that all justices make decisions based on the time they live in.

      Was a justice really going to second guess the president of the United States in the middle of the biggest armed conflict the world has seen? It was not going to happen. The supreme court is ultimately subservient to the executive in that manner.

      Had the supreme court done so, it would have permanently weakened the authority of the court more generally and Roosevelt, who up until then failed in his effort to reign the courts in, would have much more support on that front.

      It does nobody any good to criticize Korematsu without recognizing this. Trump vs. Hawaii was the ultimate demonstration that Posner’s reasoning was correct: the justices rejected Korematsu … but ultimately sided with thinly reasoned and somewhat racist executive actions anyhow.

      That does not say Korematsu and its ilk was a good decision. That IS to say that it was the only realistic decision the court was going to make (in Posner’s view, I don’t know enough about the history of WWII to contradict it or support it).

      Which is a rather profound statement: as much as we like to think justices of any ideology are subservient to a higher notion of justice, ultimately they take facts on the ground into consideration and are subject to their own biases and limitations as human beings.

      You may disagree with Posner that the whole edifice of constitutional interpretation is made up and therefore, to move forward, it should be grounded in economic decisions that the public can debate instead of meaningless drivel. But that argument isn’t “Korematsu is right” it is “Here is why Korematsu happened, there is no counterfactual of Korematsu not happening and here is why.”

      The reasoning in Korematsu demonstrate this … it is pretty clear the justices were making a political decision based on prior held views. but hiding the fact they are doing so. Posner’s argument more generally is for justices to admit that is what they are doing in all contexts.

      As an Asian American myself, I do regard Korematsu as an abhorrent and racist decision. But one must take a historical view as to why … it wasn’t because the justices were bad people. Modern justices, both left and right, who we generally regard as good, are just as capable of decisions like these.

      Posner, in my view, is right about all of this. Again I don’t know enough to comment on the historical argument but yes, he has a point when discussing why justices make the decisions they do.

      1. “Was a justice really going to second guess the president of the United States in the middle of the biggest armed conflict the world has seen?”

        Holy crap I hope so!

        That’s the EXACT time I want the SC to jump in and shoot down unconstitutional executive actions.

        1. You must live in unicorn land.

          Posner was completely right. Lincoln ignored Taney on Merryman, FDR would have ignored a contrary decision.

          Any other conclusion is wistful thinking from the safety of 75 years.

          1. Bob from Ohio : FDR would have ignored a contrary decision.

            Without claiming any expertise on the subject, I note that when Roosevelt’s policy was negated (negated?) by Ex parte Endo in 1944, FDR issued an order following the decision & reversing his policy before the SCOTUS ruling was made public.

            Of course that was in December 1944, so I imagine there’s a strong case that (a) the wartime fever had broke, (b) the country & administration felt more comfortable with the progress of the war, and/or (c) FDR simply realized he had been wrong. That’s all speculation, though there’s probably some historical record that either supports or refutes it. Without a doubt late ’44 was very different than 155 days after Pearl Harbor in terms of the rational mindset of FDR and the country.

            1. Another lawyer mass hysteria. The lockdown was a million times more damaging.

          2. I think most people think Lincoln and General Cadwalader were wrong in disregarding the court’s decision in Merryman. That pesky rule of law thing that most people claim fealty to but disregard when it’s inconvenient.

      2. “Posner, in my view, is right about all of this.”

        Of course. People who think differently all imagine they would have openly resisted the Nazis in 1942 Berlin or been an abolitionist in 1850 Georgia, when such behavior was just about non existent.

        1. Eddie Murphy turned a version of your point into a comedy routine (from :39 forward).

          https://youtu.be/oGQMpi-uOkI?t=39

        2. 1776 and The Troubles come to mind.

          I guess it depends on the percentage of the population willing – and able – to fight the power.

          In your Nazi and abolitionist examples, only extremely small percentages of the populations were willing and able to fight the power.

        3. Bob from Ohio : “People who think differently all imagine they would have openly resisted the Nazis… (etc)”

          But is such an extreme analogy called for? The Roosevelt Administration did not pursue mass internment of German-American or Italian-American citizens. There were some measures, but nowhere near the same scale. Even allowing for the visceral impact of Pearl Harbor, you have to ask why people couldn’t have followed the same reasoned steps in considering Japanese-Americans. Even allowing race that should have been possible.

          1. Did you live through 9/11? Were Americans “reasoned” about the way they thought about Muslims in the time after that?

            We like to think there’s this great human capability to rise above tribalism, but it fails in the wake of attacks. I dislike this- I blame Roosevelt for interning the Japanese- he could have chosen not to do it. But had he done that, he would have been restraining the emotions of the American public, not reflecting them.

            1. Did you live through 9/11? Were Americans “reasoned” about the way they thought about Muslims in the time after that?

              Yes.

      3. Bear in mind as well that when Chief Justice Taney DID try to make decisions invalidating Lincoln’s actions during the Civil War, Lincoln just ignored him. I assume there would have been a LOT of sentiment in FDR’s administration and the country towards ignoring a Korematsu decision that came out the other way.

        Inter arma enim silent legis.

      4. What Posner said was that the judges came to the conclusions they did in Korematsu because it was WWII, and that all justices make decisions based on the time they live in.

        Had the supreme court done so, it would have permanently weakened the authority of the court more generally …

        That does not say Korematsu and its ilk was a good decision. That IS to say that it was the only realistic decision the court was going to make

        So your argument is that the only way the court can maintain it’s authority is by issuing decisions that aren’t rooted in principles or rule of law or equal protections, but to act in an unprincipled and politically expedient way?

        Acting in a principled manner hurts the integrity and authority of the court?

        That’s your position? Just making sure.

        You must live in unicorn land.
        Pot, meet kettle

        1. That’s not my position, that’s reality, based on the current judicial order.

          You and I may wish that order was different, but its not.

        2. So your argument is that the only way the court can maintain it’s authority is by issuing decisions that aren’t rooted in principles or rule of law or equal protections, but to act in an unprincipled and politically expedient way?

          Yep. Sometimes. The law, as one of the greatest legal minds in history said, is not a brooding omnipresence in the sky.

          1. I’m disappointed in your answer here. I don’t think the law is being asked to be a brooding omnipresence, but only to continue to protect the civil rights of US citizens, even in times of war or other difficult circumstances. I don’t think that’s too much to ask of it. Chief Justice Taney had more backbone than many later and more highly thought of justices.

            1. What good are court orders that aren’t enforceable?

              And, indeed, an unenforced court order can eventually embolden others to disobey court orders, and then you end up with an ineffectual judiciary.

              Finally, Chief Justice Taney is not your hero. He wrote Dred Scott, which was entirely consistent with what the Court did in Korematsu. He was just fighting a rearguard action against Lincoln because he liked slavery.

      5. I was going by what Posner said in the Radiolab interview. He’s not only only defending the Korematsu decision, he’s saying that interning Japanese Americans was the right thing to do.

        He comes in at about 35:00:

        https://www.wnycstudios.org/podcasts/radiolab/articles/radiolab-presents-more-perfect-american-pendulum-i

      6. There is also the legitimate fear of espionage.

        1. There’s also illegitimate fear of espionage.

          1. While it’s likely that the Battle of Los Angeles was only a mirage, it was still a chilling reminder of the vulnerability that many Americans felt at the beginning of World War II. The Japanese would later hatch several schemes to attack the American mainland—including launching over 9,000 explosives-laden “fire balloons”—yet none of them ever produced the level of mass hysteria that accompanied the phantom shootout over Los Angeles.

            https://www.history.com/news/world-war-iis-bizarre-battle-of-los-angeles

    2. So, how does Capt feel about shutting down religious services during COVID and the Constitutionality of that?

      1. Content neutral.

        1. Nothing like drawing a line around a Jewish neighborhood to shut down everything there, and calling it “content neutral”

          I’m sure your logic would fit in great with the WWII SCOTUS judges. It’s just “Necessary” and “content neutral”.

          1. That line didn’t get drawn because they were Jewish. It got drawn because they were ignoring urgent measures needed to slow a pandemic.

  2. Lawyers cannot read the plain English of the constitution. They decide as whartever their personal feelings, biases, and hatreds are. Then they deal themselves absolute immunities for their horrifying mistakes. Most toxic occupation, 10 times more toxic than organized crime, plus 100 times more supercilious.

  3. In Nazi Germany, only one judge stood for the rule of law. He said, cannot confine people who have not committed a crime. Cannot kill people without a trial. He issued an arrest warrant for a Nazi governor for murder. He was offered retirement or the firing squad. This name should be far more famous than it is. Where was our American Kreyssig? Name one American judge with his courage. I have his autobiography in German with a copy of the warrant. It should be translated.

    https://en.wikipedia.org/wiki/Lothar_Kreyssig

  4. For those of you attacking Posner, what do you have to say about Jackson’s dissent in Korematsu?

    1. Jackson would have disagreed with Posner. Courts should not rubber stamp military orders, and Japanese American citizens were not a threat.

      In his Radiolab interview Posner said officials did not know much about Japanese Americans at the time. He’s led a cloistered life. But this wasn’t FDR far away, a New Yorker sitting in D.C. This was California officials, who saw them every day.

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