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Justice Stevens and the Korematsu era

The following essay was written by Craig Green, an Associate Professor of Law at Temple University Beasley School of Law.  His areas of expertise include wartime detention, equal protection, the federal sentencing guidelines, customary international law, and Erie, and he has also worked in the Solicitor General’s Office as a Bristow Fellow.  His current research is entitled “Ending the Korematsu Era: A Modern Approach.”

There is no substitute for experience, and John Paul Stevens’ career presents an awful lot of it.  During his thirty-five years as a justice, many cases have drawn the Court to consider recurrent constitutional questions such as federalism, privacy, race, sex, criminal procedure, and free speech.  Such long precedential arcs are fascinating in their own right, and Justice Stevens has made contributions in almost every field imaginable.  Yet other long-lived justices have accrued comparably large banks of experience, and so may current or future members of the Court — if they remain fortunate and healthy.

By contrast, cases about wartime detention and military commissions appear only sporadically and in tight clusters.  National conflicts with broad claims of presidential war power typically arise just once in a legal lifetime.  But not for Stevens, and in this regard he is truly unique.  Stevens entered law school and clerked in the 1940s during what could be called the “Korematsu era,” and his long judicial career was capped by twenty-first-century cases about the War on Terror.  Many aspects of Stevens’ career deserve careful remembrance, but none more so than this.

In the years in and around World War II, presidents won many famous cases about war powers, as the Court upheld slipshod military commissions, enforced racist “curfew” and “evacuation” orders, and denied habeas jurisdiction altogether for extraterritorial aliens.  For some observers, such judicial acquiescence came as no surprise.  By 1943, Roosevelt had picked eight of the nine sitting justices, the country was shocked and angered by Pearl Harbor, and the Court had to rely (as always) on the President himself for information about the military’s needs in keeping our country safe.

Fast forward to September 2001.  Seven of nine justices were chosen by Republican Presidents, and five voted to approve President Bush’s own election in 2000.  The World Trade Center attacks had stunned and horrified the country.  And many details about our War on Terror seemed unknowable to outside observers such as the public and the courts.

In November 2001, President Bush authorized the creation of military commissions to try unlawful enemy combatants in this new conflict, and the military crafted special procedures for those trials.  In January 2002, the United States began detaining lawful enemy combatants without trials or charges at Guantanamo Bay, where the government argued that federal courts lacked jurisdiction to even consider claims of illegality and abuse.

Consistent with Korematsu-era cases, judicial review of these presidential actions could have been quick and easy.  Congress had authorized the use of military force, triggering the President’s war powers; and the President claimed that his policies of military commissions and unreviewable detention were vital to national security.  Because the Court lacks expertise in any kind of warmaking, much less antiterrorism, executive lawyers might have anticipated a series of solid victories.  Instead, Justice Stevens helped lead the Court to issue an unmatched string of presidential defeats.

Two obvious questions about these recent cases are how exactly they came to be, and whether they have limited presidential power too little or too much.   At this moment of Stevens’ retirement, we cannot know for sure.  What is clear is that today’s Court has chosen a different path from the Court of Stevens’ youth.  Not only has the modern Court expressed greater commitments to the rule of law and procedural fairness, but – equally important – the modern Court has also shown extraordinary patience for slow constitutional decisionmaking.

Contrast the World War II precedents.  In Hirabayashi, the Court unanimously upheld a racist military curfew one year after it took effect.  This was the first term of Justice Wiley Rutledge, for whom Stevens later clerked.  In Hirabayashi, the government’s policy rested on remarkably scant information, which the Court accepted as reasonable even though it was embarrassingly false.  One year later, the government in Korematsu made exactly the same legal and factual arguments to support a racist “evacuation plan,” which the Court also upheld.  Notably, however, the government lost three dissenting votes in the twelve months from Hirabayashi to Korematsu, and the conference vote was just five to four — with Rutledge as the government’s fifth and decisive vote.

If Hirbayashi and Korematsu had been decided a year or two later, would the government’s implausible racial arguments have been exposed by that passage of time, with corresponding damage to presidential credibility?  Our modern cases give reason to wonder.  In 2004, Justice Stevens’ majority opinion in Rasul extended statutory habeas jurisdiction to Guantanamo detainees, but explicitly avoided deciding what constitutional rights might apply to such prisoners.  In 2006, Stevens likewise wrote a narrow opinion in Hamdan, invalidating certain procedures for military commissions without exploring constitutional limits on such tribunals.  Even Boumediene in 2008 (in which Stevens assigned the majority to Justice Kennedy) held that Guantanamo prisoners were protected by the Constitution’s Suspension Clause.  But the Court did not decide whether such detainees had other constitutional rights, much less whether constitutional protections extend to extraterritorial detainees held in Iraq, Afghanistan, or elsewhere.

Nearly a decade has passed since the attacks of 2001, and it’s been a long several years for detainees who even today can only speculate about their legal rights.  On the other hand, the modern Court’s series of narrow rulings has prevented the hasty overreactions that characterized the Korematsu era.  Indeed, recent events might recall Justice Jackson’s dissent in Korematsu — especially for those who witnessed such history first hand.  Jackson could not quite bring himself to recant his year-old pro-government vote in Hirabayashi, but he did refer to such judicial decisions as “[lying] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”  And instead of trying to distinguish Hirabayashi from Korematsu on some legal or factual ground, Jackson remarked with vivid simplicity:  “I think we should learn something from that experience.

With opinions of Stevens and his colleagues as landmarks, perhaps the Korematsu era’s main lesson was not to trust Presidents quite so much, or so quickly.  Certainly the modern Court’s mild and tentative approach to war powers has made life harder for Presidents Bush and Obama, and more especially for the government lawyers who give advice in such dynamic terrain. Yet by eschewing a stance of blind acquiescence — which might indeed have risked “another Korematsu” with different facts — Stevens and his colleagues have created time for the slow process of public debate and entrepreneurial politics to run its course.  Perhaps this is what Stevens learned from the experiences of Rutledge, Jackson, and the Korematsu era more generally.  And we may hope that Stevens’ successor, the legal community, and future generations may likewise learn that lesson well and quickly before the next crisis comes, whenever that might be.