Alan Jacobs

The other day I mentioned some famous Supreme Court cases that were influenced by public opinion. I had forgotten that a few years ago I wrote a post, no longer online, about one of the most important of them. I’m reposting it here, with minor edits. 

Let’s take a look at one of the most widely condemned of SCOTUS decisions, Korematsu vs. the United States. In Korematsu the court allowed the practice of evicting United States citizens, often native-born citizens, from their homes and moving them away from the West Coast simply because they were of Japanese descent. The vote was 6–3, and each of the justices in the majority was appointed by President Roosevelt, the man who issued that order. (In a separate but closely related ruling, issued on the same day, the Court ruled that such citizens, though they could be forced to leave their homes, could not be “detained,” thus depriving the internment camps for Japanese-Americans of legal sanction.)

The chief interest of Korematsu, for today’s reader of the history, is the dissent by Justice Robert Jackson, later to become the Chief Prosecutor at the Nuremberg Trials. In the first stage of his dissent — which you may see in full by going here and scrolling aout three-fourths of the way down — Jackson points out that Fred Korematsu was a natural-born citizen of the United States whose loyalty to his country had never been questioned by anyone. He was merely living and working in the place of his birth (Oakland, California) but was by the Executive Order obliged to turn himself in to military authorities — an obligation that he would not have faced had he been “a German alien enemy, an Italian alien enemy, [or] a citizen of American-born ancestors, convicted of treason but out on parole.” Yet he was different from those others “only in that he was born of different racial stock.” Jackson continues:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’ Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.

This point would have been sufficient in itself to declare Roosevelt’s order unconstitutional, but Jackson discerned a larger and greater issue at stake:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.

Jackson’s point here is exceptionally acute: this is not as matter of rationalizing — that is, giving an implausible intellectual account of — the order, but rationalizing the Constitution itself. Which is a far more dangerous move.

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we [i.e., we Justices of the Supreme Court] review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

People are often automatically dismissive of “slippery-slope” arguments, as though no slopes are ever slippery; but once a metaphor is dead it’s dead. Justice Cardozo’s phrasing may be more useful: “the tendency of a principle to expand itself to the limits of its logic.” This tendency is almost inevitable in SCOTUS decisions, because of the power of precedent: only rarely is a decision walked back; rather, a “passing incident” very easily and naturally “becomes the doctrine of the Constitution” when justices see different situations in which it can be applied. All the pressure is on one side, towards expansion rather than contraction of the principle.

Such expansion of a principle is all the more likely to happen when popular opinion, especially elite popular opinion, is also strongly on one side. FDR’s decision to move Japanese-Americans from their homes was quite popular (as were the internment camps) and eight of the Justices had the further pressure of owing their positions on the Court to the Roosevelt. What the Justices needed was a jurisprudential principle substantial enough to make a counterweight to those pressures. All three of the dissenting judges had that principle, but it was most fully developed in and articulated by Jackson.

Not long before his death Justice Antonin Scalia was asked, by law students at Santa Clara University, which Supreme Court opinion he most admired. He named Jackson’s dissent in Korematsu.

That’s the Canadian River in the Texas Panhandle. The lovely photo is by Sean Fitzgerald from this story. The theme of this issue of Texas Highways is rivers — and more generally water in Texas. It’s something that concerns me profoundly. I have an essay on water and the West coming out in Raritan soon — I’ll link to it when it appears. 

Still Life with Sheltie

JC Niala:

cultivating on allotment sites has always been so much more than ‘growing your own’. As Crouch and Ward put it, ‘The allotment is a different kind of place in which different values prevail.’ These different values often seem paradoxical to the non-allotmenteer, but are precisely what ensure that allotment sites survive. In this book, one gardener tells Crouch and Ward: ‘The allotment is 51 per cent hard work, and 49 per cent disappointment.’ So why on earth do people carry on allotmenteering? When I carried out my research across numerous sites in Oxford, the words that people use to describe allotments tell us why – ‘paradise’, ‘magical’. Allotment sites are utopias. […] 

This love and generosity spills off individual plots, through the allotment fences and into the wider city. On every allotment site, there is usually a place where people put their excess crops for anyone to help themselves. This is deliberate. Gifts carry obligations, and by being able to help oneself without being seen, the taker doesn’t owe anyone anything. They can also pay it forward, placing their extra produce at another time when they have it. I met a woman who survived on this gifted food – she lost her job during the lockdowns, and because she had only just secured an allotment, didn’t yet have her first harvest. Other allotmenteers grow cut flowers with the sole purpose to give them to people (often strangers) across the city, to spread joy. Even allotment fences that have been steadily erected around sites over the last few decades, to keep produce safe, break the normal rules of a city. Instead of keeping people away, allotment fences are often social places where passers-by strike up conversations with allotmenteers about what they’re growing, as well as to get a glimpse of the inviting chaos inside. 

The idea of a “banal utopia” strikes me as a really powerful one: in some small and everyday way to “repair the world” and to, implicitly or explicitly, invite others to join you. Maybe everyone can find a place to make a banal utopia. 

People keep talking about the Supreme Court being “out of step with public opinion.” You know when the Supreme Court was totally in step with public opinion? When it decided Korematsu. And when it decided Plessy v. Ferguson.  You know when it was out of step? When it decided Miranda v. Arizona. So some of the worst decisions ever made by SCOTUS came when the justices heeded public pressure, and some of the best when they ignored it.  This wasn’t always true; but sometimes. Often enough to be a matter of note.

Many people decry SCOTUS as “unaccountable,” which simply means that justices can’t be removed when they make unpopular decisions. But Justice Robert Jackson’s dissent in Korematsu, one of the greatest moments in the history of the Court, would probably have led to his removal if justices had been thus “accountable” — which in turn would have denied us his vital role in the Nuremberg trials and also his later SCOTUS opinions, for instance in Youngstown Sheet & Tube Co. v. Sawyer, a case that did much to set limits on Presidential power. Many other cases involving many other unpopular justices could be cited. 

So be careful what you ask for. Public opinion won’t always be flowing in your preferred direction. In my view, the court is already — and probably always has been — too sensitive to public opinion. I’d prefer it to make more decisions that people don’t like, and to tell those people that if they want something different they should elect representatives who, instead of auditioning for careers on TV news, will pass better laws.  

Anne Snyder, the editor of Comment, is doing some really important things: she’s not just publishing essays on social problems and possibilities, she’s also trying to use the journal as a kind of conduit and connector, a means to help people actually address social problems and embody social possibilities. Here’s an example from this morning. In our moment of constant critique and complaint, it’s great to see a journal with a determination to try to make things better.

Last year I explained why I think Jacques Ellul’s book on Christian anarchism is really bad; and I hinted at a different way of thinking about Christianity and anarchism in this essay. I’m more than ever drawn to Christian anarchism, but don’t have the bandwidth right now to work out what that would look like. (Consider this a note to my future self.)