Justice Clarence Thomas's Korematsu Problem

Abstract

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Keywords: constitutional law, Korematsu, Justice Clarence Thomas, Hamdi, Johnson v. California, national security, color-blindness, executive power