'Loaded Weapon' Revisited: The Trump Era Import of Justice Jackson’s Warning in Korematsu

Abstract

This article first recalls government harassment, indefinite detention, and torture following 9/11. It then concisely examines the dark shadow of the Court’s 1944 Korematsu decision alongside the mid-1980s coram nobis correctives in Korematsu and Hirabayashi. Those case reopenings showed that the government deliberately and unethically misled a passive Court and fearful American public about the constitutional validity of the World War II mass racial treatment.

The article then reviews in Korematsu’s wake the recent court struggles over judicial independence in national security and civil liberties controversies, recognizing both a “modicum of progress” and the risk of backsliding – presaging the Supreme Court’s recent ruling in Trump v. Hawaii. In charting the judicial role, the article calls for an accommodation of both security and liberty. It accounts for the government’s broad powers in securing the country’s people and institutions. But it calls simultaneously for careful judicial protection of fundamental liberties during times of distress as the foundational check and balance pillar of a constitutional democracy. And it identifies combined critical legal advocacy and public pressure at both the front-end (prevention) and back-end (rectification) as the “real bulwark” against the government civil liberties excesses and passive courts in a rapidly evolving international security milieu.

The “Loaded Weapon Revisited” thus responds to pressing realpolitik questions for the Trump era and beyond: How are we, as a civil society, and particularly our courts, to continue overall progress in the face of politicians’ regressive policy prescriptions and public hostility; and how, “in times of international hostility and antagonisms,” as Judge Patel cautioned, are “our institutions, legislative, executive and judicial to exercise their authority to protect all” from the “fears and prejudices so easily aroused”?

Keywords: Korematsu, coram nobis, Justice Jackson, loaded weapon warning, national security, civil liberties, judicial independence, strict scrutiny, democracy, checks and balances, Trump v. Hawaiʻi, critical legal advocacy