← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Specter of Korematsu
00:32:03
A timely look back at the infamous Supreme Court case that upheld the internment of Japanese-Americans.
Loading summary
Transcript37 lines
- [00:05]
A
Hi, and welcome to Amicus Slate Supreme Court Podcast. I'm Dahlia Lithwick, and I cover the courts for Slate. Just a few weeks into the era of President elect Donald Trump, and already there is a lot of bruising around the edges of the United States Constitution. The past few weeks have brought talks of Muslim registries, jail time for flag burners, restrictions on voting, and the sweet mystery of the emoluments clause. That's the part of the Constitution Constitution you've never heard of that prohibits elected officials from making a profit from foreign leaders. We're recording today's episode on Tuesday, and we're doing everything we can to get it to you by Wednesday before the constitutional warning sirens start to wail again about something else. Now, a little later on in the show, we'll hear from former acting Solicitor General Neil Kadial about that idea of creating a national registry for Muslims here in the U.S. but first, we take you to Capitol Hill, where this week we heard from Senate Judiciary Chairman Chuck Grassley that he plans to hold confirmation hearings for Jeff Sessions before Trump is inaugurated in January. Sessions is Trump's pick for the attorney General and a current member of the very same body that will now judge whether he is fit for the job of the nation's highest law enforcement officer. Joining us now is Senator Chris Coons, the junior senator from Delaware and a member of the Senate Judiciary Committee. Welcome to Amicus, Senator Coons.
- [01:29]
B
Thank you. It's great to be on with you. I appreciate the chance.
- [01:32]
A
So I think the first thing I want to ask about is something we've talked about a lot on this show in the past few weeks, which is the sort of slow erosion of constitutional norms and ideas and values in the Trump era or in the early Trump era. And I'm speaking to you only a few hours after President Elect Trump tweeted that flag burners should just be stripped of their citizenship and they should be jailed. And you and I know that the Supreme Court has already said that that's absolutely unconstitutional on both fronts. Both we protect flag burning as protected speech, and also we don't strip folks of their citizenship. So I'm wondering, Senator, if you could talk a little bit about how worried one wants to be about these errant tweets when they go to cherished constitutional values.
- [02:21]
B
Well, I think if President Elect Trump wants to be an effective leader for our country, he should put the phone down, stop tweeting, and focus on trying to fill his Cabinet with confron qualified people who could conceivably work in a responsible and bipartisan way. He continues to send out alarming messages. The one yesterday was about millions of people voting illegally without any shred of evidence, undermining confidence in county and state officials all over the country, who generally run very efficient, very transparent electoral systems. And the pushback from the media and from a whole lot of state and local officials was prompt that what he's alleging, with no facts and no basis, undermines confidence in elections and in democracy. Today's latest tweet about flag burning and citizenship also shows a dangerous disregard for the First Amendment, for our concept of free speech and citizenship. A previous Congress many years ago hotly debated whether to amend our Constitution to specifically ban flag burning. I understand the emotional power and the significance as a symbol of patriotism and a symbol of our nation, of our flag. And I understand that's exactly why protesters burn it. They're trying to do something outrageous, but it doesn't threaten public safety. It doesn't threaten immediate harm to people around them. And in a country that is committed to free speech as a core foundational constitutional right and democratic principle, it's exactly in upholding people's right to be outrageous and to say things we dislike, that we demonstrate our fidelity and our passionate commitment to those foundational rights.
- [04:08]
A
Senator, I guess I'm hearing you say that. On the one hand, you know, this is just silly tweeting, and on the other hand, that these are threats to core values. And I think part of what's awfully hard for listeners is how much do we take this, you know, sort of wallpaper stuff, you know, the stuff that looks like maybe it's not an issue. He's just talking, you know, of course flag burning is protected. How much do we take it serious? And how much do we just say, keep your eye on the ball, let's look at the business conflict and not get caught up in what looks like smoke and whiz bang stuff going off on the side.
- [04:45]
B
Odalia. That's exactly the challenge with this unique president elect is that through the course of his whole campaign, his transition from, you know, business mogul and reality TV star to successful primary candidate to now president elect, he has kept the media and the public and the nation off balance by interjecting himself in all sorts of ways. It looked to me for much of the general election campaign as if this tendency to throw out not, just, as you put it, silly tweets, but disturbing concerning, even alarming tweets. He was principally focused, it seemed, on keeping himself at the center of the news. And not in ways that were positive or flattering for him or for our country. I think many of us were surprised by the election and its result because of that, because he seemed so unmeasured and brash and willing to just throw anything out there. I do think we need to those of us who are, you know, elected and serve in Congress and serve in state and local government, we need to keep focused on things that will actually directly affect people's lives and that will change our constitutional standards or our country and its place in the world and how it treats citizens here first. But we can't disregard alarming tweets like this that suggest either a real commitment to undermining constitutional values or an indifference to them. So, to move to the next point you raised, which is his potential business conflicts. In my living memory, we've not had a president, a president elect, anything like Donald Trump, who has real and significant and large economic interest in countries all over the world where local government officials, national government officials have a direct hand in whether or not he gets permits, whether or not he gets financing, whether or not his projects move forward. And Donald Trump's steadfast refusal to release his taxes at any point in the course of the campaign means that the media and the public really don't have a thorough and complete understanding of his business interests and holdings. I suspect you'll see attempts to legislate that as a requirement for all future presidents, Donald Trump included. And his correct statement that there, there is no current ethics statute that says he has a conflict of interest, while accurate, misses the core point, which is there is a clause in our Constitution which, from the founding of the country was an attempt to make clear that we only want elected national leaders who are devoid of any conflicts of interest because of potential influence that could be exerted over them by foreign leaders, whether it's to quote the language of the Constitution, kings, princes or foreign states, or more likely today, you know, the bank of China or a provisional land use board in, you know, cities like Rio. But the idea that Donald Trump's immediate family will directly run this business empire and it will have no impact on his conduct or on the conduct of our diplomacy or on the conduct of foreign governments, I think flies in the face of obvious reality. And we should be focused on that because that's setting a new standard for a conflict of interest that is foundational for this president elect.
- [07:59]
A
But. But, Senator, I think you probably read the same articles I did over the weekend that invoke this idea that there is this emoluments clause and simultaneously say it's archaic. We have no idea if anyone has standing. We have no idea if the President is rightly subject to the clause. It seems as though this is going to put a lot of con law professors to work for the next four years, but I'm wondering if there's any sense, I hear your urgency that this needs to be addressed, but if there's a sense that the emoluments clause is the absolutely worst vehicle to use to try to find out going forward about the President elect's conflicts because nobody even knows what it means or whether it applies.
- [08:42]
B
Well, as is the case with other critical passages in our Constitution, we're now going to have a fascinating conflict between originalists and those who are arguing that it's outdated. It should be viewed in the modern context. It should be interpreted not as the Founders might have intended it, but in the context of a truly interconnected modern global economy. I just note with a sense of irony that there may well be some reversal of traditional positions by originalists and contextualists. I will take the point that there isn't clear law, there isn't clear decisional law on the emoluments clause. It is a section of the Constitution that to the best of my knowledge, has not been recently applied. But I do think it shows a really important standard. And if we claim fidelity to the Constitution and to the Founders, we cannot take such a clear section of the Constitution and utterly ignore it when there are very real threats to the independence, the independent decision making ability of this President Elect because of the significant economic impact on him and his family of decisions by foreign governments.
- [09:56]
A
Senator, I want to turn for a minute to something you flicked at at the beginning of this conversation, which is voting, because it seems to me that we now have both presidential candidates saying in one fashion or another that the system is rigged. As you suggested, President Elect Trump has tweeted that millions of people voted multiple times and that the outcome in the popular vote should have favored him. And Hillary Clinton is now putting her name behind a recount, eff, at least thus far in Wisconsin. Is it fair to say, and I know you think about this a lot as a senator, is it fair to say that our system of voting is just broken and that we are at a point where public confidence in our voting system is so shattered that whether it's vote suppression on one side or voter fraud on the other, we are never going to get back to a time when people believe in the voting system as it exists now?
- [10:54]
B
No, I disagree with that, I don't think that the overwhelming majority of Americans think this election was rigged, that their votes didn't count, that the outcome was set by shadowy forces. I was the chair of the Africa Subcommittee on the Foreign Relations Committee my first four years. And I'll tell you, there are places around the world, on the continent of Africa and in other places in the world where they have democracies informed, but not in reality where they have elections, but where the government essentially determines the outcome before the election is run. And the system really is rigged in a degree and in a way that I don't think most Americans should believe or do believe. Yes, there are arguments going on right now between Jill Stein and the Green Party folks who are paying for a recount in two, possibly three states. But I'll remind you, they're following the rules and the law. These are states that have laws that allow you to request a recount and if you're willing to pay for it, to have it done by hand. And those appeals for a recount were filed in a timely fashion. They pursue the appropriate process for challenging the soundness of an election. And my gut hunch, without deep knowledge of this, is that in all states, it will confirm that the outcomes were very close to what was initially reported. I was a county elected official for 10 years, and it is in most of the country counties that run the elections. And I have broad confidence in the fidelity of our electoral system and in our ability, particularly compared to other countries around the world, to run elections that are free and fair. Do I have real concerns about voter suppression? About the inappropriate use of statewide laws or of city or county laws to intentionally suppress voter turnout, particularly by racial minorities, by low income folks? Yes, I think that is a real problem. We've had hearings on this in the Judiciary Committee. Courts have acted to invalidate or suspend inappropriately racially motivated redistricting laws or laws that change the timing and location of voting and polling places. And after a landmark decision by the Supreme Court, Shelby County, I think we've seen a dreadful and dramatic increase in intentional efforts by state and local officials to suppress the vote. That's different from arguing that people go in, they press a button on a voting machine and it isn't counted, or Russians have somehow hacked into the machine and are adding hundreds of thousands of votes, or Donald Trump's outrageous and unfounded accusation that millions of people have voted illegally. I do think we should keep our eye on the ball. That the Voting Rights act has been in many ways profoundly undermined by the Shelby county decision. And despite vigorous efforts, we have only ever found one Republican in the United States Senate willing to join a bill that would restore most of the preclearance provisions of the Voting Rights Act. That I think is deeply regrettable, even shameful, and it shows a moving away from a long term commitment to protecting the right to vote. But I don't think that our electoral system is fundamentally flawed in the way it is in many other countries.
- [14:07]
A
And Senator, how much does that Shelby county decision and the slow erosion of the Voting Rights act inflect on your thoughts about whether Senate Democrats should confirm Jeff Sessions, who has spoken out, you know, long before his name came up as Attorney General, spoken up in favor of the Shelby county, who has condemned the Voting Rights act and said it undermined the dignity of the covered states. He has not, I think it's fair to say, been on the same side of you on this question of vote suppression. And do you and other Democrats in the Senate take those things seriously when you go forward looking at his confirmation as the next Attorney General?
- [14:51]
B
Absolutely. Senator Sessions record on voting rights and the Voting Rights act has to be a part of a thorough and fair hearing in front of the Judiciary Committee. I know Senator Sessions well. In our six years of serving in the Senate together, there are two areas where we actually partnered in restoring funding to the Federal Public Defender Service and in advocating for funding and for the reauthorization of the Child Advocacy Centers, the Victims of Child Abuse Act. And I recognize that on those two areas in six years, we were able to work across the often sharp partisan divides here. And so, so I will give him credit for that. I also have very significant disagreements with him on immigration, on civil rights and on civil liberties. I've told him I will keep an open mind. We will conduct a fair hearing, but it's going to be thorough and we're going to ask him a lot of hard questions and expect him to explain his views on how he would act as Attorney General. An Attorney General is supposed to be independent, not a partisan, and is supposed to act in the interest of the whole country, not just of the partisan or narrow interest of one administration. And it's my hope that Senator Sessions has a sense of that and I look forward to hearing his answers to what I think can and should be difficult, demanding questions about his record on the Voting Rights act, on civil liberties, and on serving the country as a whole.
- [16:16]
A
Senator Chris Coons is the junior Senator from Delaware. Thank you so much, Senator, for your time.
- [16:21]
B
Thank you.
- [16:23]
A
Just a couple of weeks Ago, the US Supreme Court got a bunch of unwanted attention, not for something it has done this year, but for something it did well, 72 years ago. That's when it ruled that interning Japanese Americans during World War II was perfectly constitutional. The comment that touched off the discussion about the case Korematsu vs United States, was made by a Trump surrogate, Carl Higby, in an interview with Fox News's Megyn Kelly. The two were discussing a remark by Kansas Secretary of State Kris Kobach, in which he suggested that the incoming Trump administration was considering reinstating a registry for all US Residents from a handful of predominantly Muslim countries.
- [17:05]
C
We've done it with Iran back a while ago. We did it during World War II with Japanese, which, you know, call it.
- [17:11]
D
What you will, maybe you're not proposing we go back to the days of.
- [17:14]
B
Internment camps, I hope.
- [17:16]
C
No, no, no, I'm not proposing that at all, Megan. But what I am saying, you know.
- [17:18]
B
Better than just that. That's the kind of stuff that gets people scared.
- [17:22]
C
Carl Right, but it's, I'm just saying there is precedent for it, and I'm not saying I agree with it, but in this case, I absolutely believe that.
- [17:28]
D
A regional base, they're citing Japanese internment.
- [17:31]
B
Camps as precedent for anything the president elect is going to do.
- [17:34]
C
Look, the president needs to prot and if that means having people that are not protected under our Constitution have some sort of registry so we can understand, until we can identify the true threat and where it's coming from, I support it.
- [17:45]
A
Joining us now to discuss registries and other matters is Neil Kadiel. He's the former Acting Solicitor General of the United States, a partner at Hogan levels in Washington, D.C. and a professor of Constitutional Law at Georgetown Law School. Welcome to Amicus. Neil Kadiau.
- [18:01]
D
Thank you. It's great to be here.
- [18:03]
A
And I to want, I want to talk to you about something that sort of surfaced last week and then seemed to have fizzled but keeps surfacing. And that is this idea of creating a Muslim registry or database. Now, it starts off in the campaign, Donald Trump says it, he takes it back. You know, his surrogates say it, they take it back on again, off again. So we actually don't know that much about whether this is a serious proposal or if this is just more kind of shucking and jiving that happens in a political season, right?
- [18:35]
D
Correct. I mean, he's kind of jumped back and forth. I mean, remember in December 2015, he had a press release saying Donald J. Trump is calling a complete and Total shutdown of Muslims entering the United States and other points. He said he'd certainly implement a database to track Muslims in the United States. But then sometimes, every so often there seems to be a little rollback of that. So it's hard to know what's going on. You know, he is the President Elect. And so until he removes those policies from the discourse, I think it's worth talking about them.
- [19:05]
A
Well, then let's about them. I think it comes up again last week, Neil, when we see first of all, Kansas Secretary of State Chris Kobach is photographed holding documents, top secret documents in plain sight that seem to suggest at least that there's a plan for, quote, special registration of immigrants. And it re raises this possibility that this is on the table. And then a Trump surrogate last week went on the media and said, oh, there's, you know, great precedent for the this in the US Supreme Court around the Japanese internment. So let's maybe start with the proposition that there's precedent for this. I mean, there is legal precedent, right? Korematsu still good law.
- [19:46]
D
Well, there is legal precedent in the sense that you can find a case that could help President Elect Trump put forth his proposal. The problem is that case is just about as discredited as any case outside of maybe Dred Scott, the case that precipitated the Civil War. And it's actually series of cases. It starts with Gordon Hirabayashi's case in 1942 and then goes on through the Korematsu case that this advisor, Carl Higbee to President Elect Trump was citing. And you know, in these cases, the court was considering the question of whether or not Japanese American citizens could be excluded on the basis of their race from certain areas and then ultimately detained in camps, taken away from their homes. And it's a remarkable story that I think, you know, hasn't fully been appreciated in the public consciousness about what these cases, how they started, what they're about, and indeed kind of the horrible things that happened. And when I was the government's chief litigation officer, acting Solicitor General, I actually went back and looked at all of the records and what the government told the Supreme Court in these cases. And it turns out that they had basically lied to the Supreme Court. And so if I could just spend a minute kind of explaining what happened and then we can really understand Trump adviser Carl Higbee's so called precedent and what it's really about. So you have these Japanese exclusion orders and they applied not just to people who were coming into the country, but People who had been born here, including this guy, Gordon Hiribayashi, who's born in the United States to Japanese parents, and he's a version of a Quaker, and he's about 18 years old. He's a student at the University of Washington. And he sees these orders that are targeting him on the basis of nothing more than his race. He'd never been to Japan in his life. And he says, this is really unconstitutional. And so he goes and sets out to violate the curfew orders. And he goes and turns himself into the FBI, saying, hey, I violated the curfew orders. And the FBI says, well, you know, we'll look past it this time. You know, don't worry about it. He says, no, you're supposed to arrest me. So they arrest him. They bring him to court. He defends himself at trial and says, this is an unconstitutional thing. He says, look, I did it, but. But it's totally unconstitutional. He loses the argument. And then he's sentenced. And the judge says, at sentencing, the judge says, you know, look, we're fighting a war. I'm supposed to send you to a prison camp, but the nearest prison camp is 1,000 miles away, and I don't have the resources to do that in the midst of fighting a war. So, you know, don't worry about it. You can just go home. And Gordon says to the judge, you know, I'm a Quaker, and my version of Quakerism is that if I've been sentenced, even if I disagree with it, I got to serve my sentence. The judge says, I don't have any way to get you there. What does Gordon do? He hitchhikes 1,000 miles to Tucson on his own back and gets there and serves his sentence. Now, while he's serving his sentence, he's bringing his case to the Supreme Court. And the Solicitor General at the time, the person running litigation is a guy named Charles Fahey. And Fahey's subordinates, the line attorneys, there's a guy named Ennis and another guy named Burling. And they start looking into this, and they realize that actually the whole idea of kind of curfews and exclusion orders and ultimately detention orders for Japanese Americans makes no sense. That actually the intelligence reports. There was a report done by the Office of Naval Intelligence, which had the lead. And that report said that the mass internment was unjustified, that only a tiny percentage were potentially disloyal. And indeed, the report concludes with these words. This is the intelligence report. Quote, the entire Japanese problem has been magnified out of its true proportion, largely Because. Because of the physical characteristics of the people. And J. Edgar Hoover, who's no fan of civil liberties, who's running the FBI, agrees with this intelligence report and agrees with Ennis and Burling. So Ennis and Burling write to the Solicitor General. This is a memo saying, quote, we have to consider most carefully what our obligation to the court is. I think we should consider very carefully whether we do not have a duty to advise the court of the existence of the report. It occurs to me that any other course of conduct might approximate the suppression of evidence. The suppression of evidence. This is what the Solicitor General is told. What does the Solicitor General do? Nothing. He orders his deputy to double down on these security arguments. There's 15 pages in the brief saying that Japanese Americans are a threat and potentially disloyal. And then the Supreme Court issues that opinion, and then another one later, deferring to the Executive Branch. But they weren't told anything else. They were only told all of the kind of hysterical stuff, not actually what the intelligence community truly thought. So that is the breast precedent they have. It's a precedent that's based on, frankly, lies from the Executive branch to the highest court of the land. And it's a precedent that has been widely discredited. So much so that actually a district court, when some of these lies came out in 1988, a trial court went and overruled the Supreme Court and said, korematsu is not good law. And so, you know, I guess they can cite it. I guess they can also cite Dred Scott. But, you know, certainly were I running the litigation strategy for the United States government, there's probably not many cases that I'd want to cite less than Korematsu v. The United States.
- [25:20]
A
Now, you yourself actually play some small part in this in May 2011, right, when you actually say, we're sorry. Right.
- [25:31]
D
Yeah. I mean, I'd learned about this kind of briefly. There was a historian named Peter Irons who started Freedom of Information act, requesting all these documents in the 70s and 80s. And I had heard about it when I was in school, but obviously didn't have the kind of ability to look into it all. So when I was acting Solicitor General, I did. I spent the summer. One of the nice things about the Solicitor General's office is it follows the Supreme Court schedule and kind of like school children, it means you're off for the summer. And so I was able to do a lot of research and dig into it. And then, yes, I did tell the full story about what happened in these documents and how the government had really misled the court. And, you know, it's so fashionable to blame the Supreme Court. It's low point. And like Dred Scott and so on, when you deal with, when you talk about Court Karamatsu. But I did think it was really important that it's also the government's litigating arm and what they did and what they told the Supreme Court. You know, it's very hard for generalist judges who don't have intelligence reports to second guess something, particularly in the midst of a world war. And so, you know, there's a kind of heightened obligation if you're a government lawyer, to be very forthcoming and tell both sides of the story. Obviously, you can be a zealous advocate, but you got to do both. And so, you know, when people like the Trump advisers or Chris Kobach, whom I went to law school with, he's a very smart man. He's just completely misguided on this issue. And if he brings this issue to the courts, you know, he will lose. And it's not going to take, you know, frankly, very much for him to lose. I mean, these are so fundamentally un American proposals. They are so deeply in tension with the text and structure and the rights guaranteed by our Constitution that even if, you know, President Trump is able to stack all nine seats on the Supreme Court with his appointees, which, you know, obviously would be difficult to imagine, but even were he able to do that, I could not imagine any nine justices upholding the types of proposals that the Trump advisers were calling for last week.
- [27:38]
A
So it's not a fix, in your view, Neil, to say, well, you know, we're not discriminating on the basis of race. So this has absolutely got nothing to do with Korematsu. We're discriminating or not discriminating. We're making differentiations on the basis of country of origin. And it just so happens that they're all Muslim countries. In your view, that doesn't cure the constitutional problem?
- [27:59]
D
Well, sometimes it can. So certainly the government has immigration powers. You know, sometimes it's even called plenary powers, kind of very expansive powers over immigration. But those, even those powers are subject to limits. So obviously, when you're dealing with immigration, you have to make national distinctions. We're only going to have a certain number of visitors come from the UK And a certain number come from, you know, Pakistan or whatever. You know, those types of distinctions are part and parcel of kind of standard immigration law. They don't pose any problem. The problem is when the government does something that looks formally neutral but is obviously motivated by a bad intent. And the Supreme Court has said that when you're doing that, like if you have a formally neutral law, but that has effectively the intent of targeting a certain religion, that's unconstitutional. So, for example, there's a case called Churchill Lukumi v. City of Halea in 1990 in which the Supreme Court struck down a local Florida law that had banned animal sacrifice because it said the laws were triggered by animus against a certain religion. Sure, the law is applied to everyone of every religion, but the court said it's targeting a certain religion. And the problem with what Trump's proposals have been so far is they've all been basically targeting a certain religion, the Muslim religion. I mean, it would be one thing thing if they just simply said, look, you know, everyone from a certain region of Pakistan is potentially dangerous. And so we're going to have special screening measures or something like that put on place. But, you know, here's what President Trump told NBC News. He said he, quote, would certainly implement a database to track Muslims. I would certainly implement that. Absolutely. Would Muslims be illegally required to register? That's the question to him. Yes, they have to be. They have to be. So when you're dealing with that and that background, you are in the realm of actually kind of formally using a lawyer's trick, using kind of neutral language to mask your underlying intent, which is to really go after a certain religion. And that's really pretty much the most un American unconstitutional thing you can do. I mean, our founders really based the whole idea of the Constitution around the idea that there is no religious test for office and that we have freedom of exercise of religion. And so, you know, things that are formally neutral but have these negative intents are, you know, blatantly unconstitutional.
- [30:36]
A
Neal Kadiel is former acting Solicitor General of the United States, a partner at Hogan Lovells in Washington, D.C. and teaches law at Georgetown University. Neil, thank you so very much for joining us in Amicus today.
- [30:48]
D
Thank you. Delight to be here.
- [30:55]
A
And that is going to do it for today's special midweek edition of Amicus. Let us know what you think. Our email is amicuslate.com you can find us on Facebook@Facebook.com Amicus Podcast. Leave us a comment. Join the discussion about any of the other headlines crossing our screens these days. Remember, you can always catch up on Amicus episodes you may have missed on our show page. That's slate.comamicus and if you're a Slate+ member, you'll also find transcripts there. If you're not, you can always sign up for a free two week trial at slate.com amicusplus thank you so much to the Virginia foundation for the Humanities where we tape our show. Our producer is Tony Field, Steve Lichti is our Executive producer and Andy Bowers is the Chief Content Officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwick. We'll be back with you in just over a week with another edition of Amicus.