Today in Supreme Court History: December 18, 1944

12/18/1944: Korematsu v. U.S. decided.

Comments

[Dan Schiavetta]

Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249 (decided December 18, 1972): simply because airplane crashed into navigable water does not create admiralty jurisdiction; claim has to be related to maritime activities (upon takeoff plane ran into flock of seagulls which clogged the engines and plane sank in Lake Erie, though crew survived; allegedly the air traffic controller should not have ok'd the takeoff) (if it was the seagulls' next of kin bringing suit, would the result have been different?)

Korematsu v. United States, 323 U.S> 214 (decided December 18, 1944): upholding against Equal Protection attack military order clearing those of Japanese ancestry from a designated "military area" (here, City of San Leandro, California) (overruled -- abrogated? -- by Trump v. Hawaii, 2018)

Illinios Central R.R. Co. v. Perry, 242 U.S. 292 (decided December 18, 1916): railroad employee injured (due to collision) during personal trip between two points within Kentucky can't sue under Employers' Liability Act because not involved in interstate commerce, even though train was carrying goods between states

[Dan Schiavetta]

Overruled? Abrogated? In doing these summaries I always note if a decision is no longer good law, and why. But I’ve been at sixes and sevens with myself as to which term to use. There is no consistency, either in Supreme Court opinions, or common use. But the West headnotes seem to have a practice that I will adopt.

Overruled: the Court changes its mind.

Abrogated: the holding is superseded by a higher authority.

For example: Plessy was overruled by Brown. Dred Scott was abrogated by the Fourteenth Amendment.

The headnote for Obergefell states that it is overruling a previous Supreme Court case (Baker v. Nelson) and abrogating a Circuit Court case (Citizens for Equal Protection v. Bruning.

[The Margrave of Azilia]

"The [West] headnote for Obergefell states that it is overruling a previous Supreme Court case (Baker v. Nelson)"

Nonsense - we have no way of knowing what the holding in Baker v. Nelson actually was. /sarc

[Gandydancer]

Sorry, not following you, even with the aid of the "/sarc". The holding in Baker v. Nelson was that homo marriage didn't present a Federal question, and that was indeed overruled (wrongly, of course).

[Syd Henderson]

overturned? But that may imply it was an appeals case.

[Dan Schiavetta]

Yes. "Overturned", along with "reversed" and "dismissed", are things an appellate court does to a lower court's ruling.

[defaultdotxbe]

I was actually wondering recently if there was a case that explicitly overruled Dredd Scott by applying the 14th amendment, or if it just went without saying. I assume there was at least one such case in lower courts somewhere.

[Dan Schiavetta]

My guess is probably not, because a court generally does nothing but evaluate the arguments being made to it and I don't think any party would be citing Dred Scott for anything.

[The Margrave of Azilia]

On the question of authority over the territories, once the need to protect slavery ended with the institution, then the Supreme Court went back to acknowledging Congressional authority, without conceding it was overruling Dred Scott.

https://1library.net/article/territorial-cases-jurisprudence-following-dred-scott.y4gwd80r

[Brett Bellmore]

"and I don’t think any party would be citing Dred Scott for anything."

I think it actually gets cited occasionally for Taney's parade of horribles if blacks could be citizens. Because it's a fairly comprehensive listing of the rights of citizens about the time the 14th amendment was adopted.

Not for its conclusion, obviously. Just for that list.

[Dan Schiavetta]

Taney was listing the rights of citizens at the time of the adoption of the Constitution (back when there was no standing army and militias were a thing). His point was that the slaveholding States would never have approved of the Constitution if it could be read as giving the rights of citizens to “the Negro race”. He was (in other words) being an originalist.

[The Margrave of Azilia]

It's still Saturnalia, meaning it's opposite world. So let us be creative in using the opposite kind of tone from what we're accustomed to.

Cap'n, I greatly value your contribution to this discussion and your analysis of Roger Taney's opinion in the case of Dred Scott.

I would venture the opinion, however, that Taney's "scholarship" was flawed. Justice Curtis' dissent pointed out that at the time of the Constitution, some states (including Southern states) allowed free blacks to vote. This is a *datum* which can challenge Chief Justice Taney's narrow version of the Constitution.

Also, while I don't necessarily subscribe to the originalist theory, I observe that future President Abraham Lincoln used originalist arguments in his Cooper Union address of 1860, specifically to rebut Taney's analysis. Lincoln calculated that 21 out of the 39 signers of the Constitution had voted to restrict slavery in the federal territories.

https://www.nps.gov/liho/learn/historyculture/cooperunionaddress.htm

So we seem to have found some division in the "originalist" ranks on this question, a point to which perhaps you might, respectfully, have given more attention.

Thank you very much for the opportunity to engage in this stimulating discussion in response to your comment, and I wish you a very Merry holiday of choice at this season of the year.

[Dan Schiavetta]

I didn’t say Taney’s was the only possible originalist view. I’m just pointing out that he was harking back to the founding era, not his present day as BB suggested. And I agree that his attempt at originalism was flawed (hugely).

Thanks for the compliment and happy holidays!

[Brett Bellmore]

I'd hardly say Taney was a good originalist, for the reasons stated above. Just that his list of horrible things that would ensue if blacks were citizens had been cited as demonstrating what the rights of citizens were understood to be.

[Gandydancer]

"Justice Curtis’ dissent pointed out that at the time of the Constitution, some states (including Southern states) allowed free blacks to vote. This is a *datum* which can challenge Chief Justice Taney’s narrow version of the Constitution."

One should not imagine that Taney was ignorant of this observation. I'm only part way through it, but ran across this:

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.

Etc.
https://www.law.cornell.edu/supremecourt/text/60/393

[Brett Bellmore]

He was just rationalizing, that's all. Taney's argument wasn't that citizenship for blacks was an open question. It's that it was ruled out. That some of the states treated them as citizens blew that out of the water.

[Gandydancer]

You're free to have that opinion, but it remains true that Azilia's formulation, “Justice Curtis’ dissent POINTED OUT that at the time of the Constitution, some states (including Southern states) allowed free blacks to vote" is highly misleading. That makes it sound like Taney had constructed an argument that Curtis had punctured and deflated by coming up with something Taney hadn't taken into account. But this is not remotely true, as the quote I produced and, it turns out, I found, quite a few subsequent pages of detailed argument demonstrate. A mere allegation of bad faith is not a rebuttal and, indeed, I judge that Taney's arguments are better than Curtis' (whose text I am only partway through atm) appear to be, precisely on originalist ("original understanding") grounds, which Curtis has entirely omitted so far.

[The Margrave of Azilia]

To the South, voting and citizenship were in fact connected, and here's this from South Carolina's secession declaration:

"This sectional combination for the submersion of the Constitution, has been aided in some of the states by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety."

https://teachingamericanhistory.org/document/south-carolinas-declaration-of-the-causes-of-secession/

[Gandydancer]

@Azilia: If you still think I or Taney claimed that voting and citizenship were unconnected you need to reread the quotation from the opinion that I produced above. Curtis makes a valid textualist argument (but not much of a rebuttal to Taney's, so far as I've listened to him), but I find Taney's originalist one more convincing. The South was IMHO right about secession, too, its failure in the resultant trial by arms notwithstanding.

[John F. Carr]

A few years ago a party to a lawsuit got some press by calling out a citation to Dred Scott in an opponent's brief. The argument itself was not in the article I read and didn't really matter. If Dred Scott says kitten stomping is bad you still can't cite it for that.

[Gandydancer]

Except insofar as it has been overruled or superseded by subsequent Amendment, why not? I wouldn't, given that judges cannot be trusted to follow even good precedent if attached to a decision they want to virtue signal against, but the article linked to by Azilia above appears to give several examples of valid citations of Scott. (Though the one I looked at, Murphy v. Ramsey, 114 U.S. 15, 44-45 (1885) "upholding a statute banning bigamy and polygamy in the territories, failing to identify the source of power, and unusually, citing Dred Scott" didn't seem to. so there's that.)

[Jonathan Affleck]

Isn’t the Dred Scott decision based upon the presumption that a black slave is chattel property?

The 13th Amendment eliminates chattel slavery so that there was no taking of property in the freeing of black slaves. I consider Dred Scott to be voided or to be vitiated, but I am open to a better term or phrase to describe the status of Dred Scott v. Sandford, 60 U.S. 393 (1856).

If I am not mistaken the case was not an appeal but a petition for a writ of error. This particularly writ is no longer in use.

[defaultdotxbe]

I don't think the court actually answered the question of whether a slave become free upon transport to a free state (perhaps to avoid teeing up a challenge to the fugitive slave act) and instead found that because black people (free or otherwise) are not citizens Dredd Scott had no standing to sue for his freedom.

[Gandydancer]

Taney's opinion did in fact say that Scott's status as a slave was determined by Missouri's laws after his return to that State, but that claim was dicta as Scott was deemed not a citizen OF THE UNITED STATES and this incapable of bringing suit under the applicable provision of the US Constitution. Had he been to a free State he might have by that State been granted all the privileges of State citizenship but in Taney's opinion he would still not have been a US citizen. (Scott's claim was actually based on his temporary presence in a Territory, iirc, and Taney also denies -- again in dicta -- that the Federal government can create any such rule for a Territory -- thus making the Missouri Compromise unConstitutional -- though Virginia -- and Georgia (etc?) -- but not France or Spain did in their respective cessions of territory.)

[Dr. Ed 2]

The 13th Amendment eliminates chattel slavery so that there was no taking of property in the freeing of black slaves

But it took the 4th paragraph of the 14th Amendment to settle it -- that there shall be no compensation.

[Gandydancer]

Actually, the 13th Amendment appears to allow slavery as punishment for a crime although “the loss or emancipation of any [such] slave” would still not be compensable under a textualist reading, I guess.

[Gandydancer]

The mentions of Korematsu sound like dicta to me, meaning that Korematsu has neither been overruled nor abrogated, merely yapped about. Maybe I'm missing something, but how does upholding one Presidential order overrule a decision upholding a different Presidential order?

[John F. Carr]

The overruling of Korematsu was dicta because the controlling opinion said the case at hand was not controlled by Korematsu. By the hair-splitting rules of qualified immunity, nobody has yet been found liable for imprisoning citizens en masse on the basis of ancestry.

[Dan Schiavetta]

True. I was just going by Westlaw, which says Korematsu was “abrogated” (? — see discussion above). Fred Korematsu was a Japanese American who was in a “military area” in contravention of an executive order. The reasoning of the Trump v. Hawaii majority, though, might have supported an order keeping him (and all others of Japanese descent) out of the country.

Roberts in Trump v. Hawaii went out of his way to say harsh words about Korematsu, but he mischaracterized it. It did not approve forced relocation — the Korematsu Court did not deal with that part of the executive order.

[Dr. Ed 2]

It is easy to say that Korematsu was wrong, but the fact is that there were Japanese subs off the West Coast -- and just because their torpedos didn't work and their marksmanship with deck guns was atrocious, it doesn't negate the fact that they were out there.

Land-based aircraft drove the subs away from the immediate shoreline. but the fact remains that anything going to Hawaii or Midway or anywhere else in the Pacific theater had to go by a ship departing from a Pacific Coast port -- and the concern is that individuals loyal to Japan would communicate (via either radio or light source using Morse code) to the Japanese the departure and possibly destination of ships so destined. And if the Japanese knew that a ship was coming, they could wait for it beyond the range of land-based airplanes and sink it.

Remember that 20 years earlier. the Coast Guard had dealt with this same situation during Prohibition -- observers on shore signaling to ships offshore, telling them the location of Coast Guard boats. And the people running the Coast Guard had personal knowledge of this being done.

And while today (2022) the USCG can triangulate the location of a radio transmission down to a particular building (seriously -- someone radioed in a fake Mayday on a VHF radio and got caught) those abilities didn't exist in 1942. The coastline was largely undeveloped at the time -- it's quite likely they would never even hear the radio transmission (which could be on Heaven only knows what frequency). And as to using a light to signal a sub via Morse Code, no one would ever see that.

38 years later, in 1980, a drug dealer in far more populated Stonington, Maine used the main breaker of his house to signal with Morse Code -- all the lights in the house blinking on and off -- and that's not what got him caught.

So yes, one so inclined likely could have signaled to the Japanese without detection.

[Hugo S. Cunningham]

Even if one accepted, in light of the Niihau incident, that Japanese on the West Coast were a potential security threat, arrests should have been suspended after US victory at Midway (1942, Jun 3) removed the immediate threat, and the whole system should have been shut down after the disappearance of any threat, after the end of 1942.

The Korematsu decision might have looked less bad if SCotUS had dismissed his appeal *without* prejudice, and invited him to sue for redress and damages one year after the war had ended, hopefully when the country had begun to recover its senses.

[David Nieporent]

It is easy to say that Korematsu was wrong, but the fact is that there were Japanese subs off the West Coast — and just because their torpedos didn’t work and their marksmanship with deck guns was atrocious, it doesn’t negate the fact that they were out there.

And if Korematsu was about submarines, that would be relevant. Since it wasn't, it isn't.

[Gandydancer]

Korematsu was about removing suspected enemy sympathizers from a militarily sensitive area and the presence of submarines was an element in defining the area of sensitivity, so Ed’s argument is absolutely on point.

Though unconvincing. The threat was not ever remotely significant enough to justify the removals. But that is a question of judgment, not law.

[David Nieporent]

No, Ed's argument is not (is never!) on point. "There were Japanese subs in the Pacific Ocean" has no bearing whatsoever on whether it was constitutional to intern Americans of Japanese ancestry. The entire point is that it was not legitimate to consider them "enemy sympathizers" based solely on race, and the entire West Coast was not a "militarily sensitive area" anyway. (Indeed, in the place that actually was a militarily sensitive area — Hawaii — there was no internment.)

[Jonathan Affleck]

Which adjective is best to use in describing each decision following?

• Dred Scott (chattel slavery, white supremacy).
• Lochner (ban on labor legislation).
• Plessy (segregation) was overturned.
• Roe (mostly unlimited right to abortion).

[Dan Schiavetta]

I’d say abrogated for the first one, overruled for the others.

[elnurmamedrafiev]

Korematsu was wrongly decided, but there is a compelling state interest in treating members of a race with an average IQ of 85 and a genetic propensity to violence and disorder differently.

[Jonathan Affleck]

Not possible -- but if someone had a demonstrable mental defect and had committed a crime that can be directly linked to some medical disorder, some sort of guardianship might be reasonable.

[LawTalkingGuy]

Imagine wanting to murder millions of other people, including your own family, wishing others get tumors, and then thinking OTHER races had a “genetic” propensity for violence.

But aside from the obvious projection in this particular case, it’s insane that anybody would think white people are uniquely non-violent given their incredibly violent history.

White people have committed staggering acts of incredibly brutal violence just within the last century. One could start with the world wars and Holocaust obviously, but one just needs to read about a lynching and its aftermath to see how enthusiastically white people would participate in an orgy of violence for fun. They sold Sam Hose’s bones as souvenirs for Christ-sake.

So unless some kind of widespread genetic mutation among the white population occurred in the last 120 years, the idea that white people are uniquely non-violent is simply a garbage take coming from garbage people.

[Jonathan Affleck]

We must not forget the staggering brutality of white racial supremacist European Zionist colonial settler anti-Jews, who had since the 1880s been planning the dispossession and genocide of Palestinians in order to steal Palestine on the basis of the mindlessly stupid fairy tale that asserts white European Jews are descendants of Greco-Roman Judeans, who in reality never left Palestine and who in fact are ancestors of modern Palestine.

The depraved white racial supremacist European Zionist anti-Jews put the long planned genocide into operation in Dec 1947, and this genocide has never ceased.

Only white racist states support the criminal genocidal Zionist state while the rest of the world hates, scorns, and loathes Zionism, the Zionist movement, the Zionist colonial settler conglomeration, the Zionist state, and every Zionist anti-Jew on the planet.

Jewish Soldiers and Civilians Looted Arab Neighbors’ Property en Masse in ’48. The Authorities Turned a Blind Eye recounts a tiny element of twisted depravity of white racial supremacist European Zionist colonial settlers and the equally twisted and depraved US Zionist anti-Jews, who continue to support vicious bloodthirsty Zionist colonial settler anti-Jews even as these atrocious colonial settlers continue to commit genocide before the eyes of the world.

A Zionist is an anti-Jew and not a Jew because the monstrous Zionist movement murders Judaism by transforming Judaism into a program of genocide.

[Gandydancer]

You are a loon.

[Gandydancer]

Strawman argument. No claim that Whites are non-violent was made.

As to Hose, “necklacing” in ZA was common as dirt. So what?

That blacks are statistically more violent than whites (or asians… or Hispanics or Pacific Islanders or…) in the US is a fact. The genetic contribution is arguable and almost certainly impossible to determine with any accuracy. One expects that different populations, however defined, will differ, but that observation is often insufficient to point to any workable beneficial policy.

Trusting government to treat people differently on the basis of race in any way that will produce a net benefit is of course idiocy.

einur is, also of course, wrong-headed. Blacks are already “treated differently”. He just doesn’t like the WAY they are treated differently.