Among the commentaries I’ve read about a recent U.S. Supreme Court decision, the one from George F. Will (The Japan Times, June 24) surprised me. The conservative columnist for The Washington Post upbraided Sen. John McCain for condemning Boumediene v. Bush — which upheld the right of habeas corpus — as “one of the worst decisions in the history of this country.”
I remember when Will was sucking up to the Reagan administration, which was only a little less recalcitrant in its foreign conduct than the current one. It was McCain, the presumptive Republican presidential candidate, who vied with other candidates during the primaries in the claim to be a “true Reagan heir.”
What surprised me about Will’s article was that Will did not just reprove McCain, but also asked rhetorically: Is Boumediene v. Bush worse than Dred Scott v. Sanford, Plessy v. Fergusson, or Korematsu v. United States?
Of the three earlier Supreme Court decisions, Dred Scott, in 1857, judged that slaves had no rights, while Plessy, in 1896, established the “separate but equal” doctrine by affirming the Louisiana law that black people could be segregated in public places and still enjoy equality. This palpably false proposition was not overturned until Brown v. Board of Education, in 1954, declared it unconstitutional.
The phrase “separate but equal,” I should note, comes with a heavy dose of irony. In the Declaration of Independence, the colonial claimants of separation from Britain had asserted that “the separate and equal station” they aspired to “assume among the powers of the earth” was something “to which the Laws of Nature and of Nature’s God entitle them.”
Korematsu, in 1944, held that no persons of Japanese ancestry in a place prescribed as a “military area or military zone” could argue for “a constitutionally prohibited discrimination solely on account of race” because annulling such rights as guaranteed by the constitution was within “the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army,” as Justice Hugo Black put it in the opinion he delivered.
Following Japan’s attack on Pearl Harbor, in December 1941, President Franklin Roosevelt issued Executive Order No. 9066: “All persons of Japanese ancestry” — 110,000 of them — were rounded up and sent to “inland concentration camps.” This was the designation that California Congressman Leland Ford chose in his letters urging Navy Secretary Frank Knox and FBI Director J. Edgar Hoover to act.
Explained this way, Korematsu may look like a precedent of Boumediene, the case that arose because of President George W. Bush’s insistence that a person, once labeled an “enemy combatant,” loses all legal rights, including the right for a clear justification of his arrest or imprisonment. But Korematsu did not deal directly with habeas corpus.
What may be called a companion case did: Ex Parte Mitsuye Endo. That decision was handed down on the day Korematsu was, Dec. 18, 1944, but it has been seldom brought up for discussion since. Unlike Fred Korematsu, Mitsuye Endo, the young woman in whose name the lawyer James Purcell brought the suit, “won” and, partly as a result, chose to quietly withdraw from the scene.
Actually, in Endo, Justice William O. Douglas, who delivered the opinion of the court, eschewed the issue of habeas corpus, and ordered “an unconditional release” of Endo from internment on the ground that she was “a concededly loyal and law-abiding citizen of the United States” and, therefore, her incarceration was wrong.
Some accounts of the case say that many of those who supported the mass internment, including, amazingly in retrospect, executives of the American Civil Liberties Union, were afraid that the Supreme Court would confront the habeas corpus issue head-on, so they were relieved that Douglas avoided doing so in his opinion.
Having mentioned Justices Black and Douglas, I am necessarily reminded that Black and Douglas would become, during the Warren Court (1953-1969), two of the most powerful defenders of civil liberties and individual rights in the history of the U.S. Supreme Court. Chief Justice Earl Warren himself began his illustrious career at the court by working out an unanimous decision on Brown v. Board of Education.
Moreover, of the three justices who dissented on Korematsu, Robert Jackson and Frank Murphy would soon imprint themselves on the annals of law, one by creating a hitherto nonexistent set of international rules, the other by enunciating some prophetic words. Both, however, would be completely ignored by their own government in subsequent years.
Jackson, as chief prosecutor of the Nuremberg Trials, defined “crimes against the peace of the world” as well as “war of aggression,” while Murphy, in Yamashita v. Styer, warned that the decision to punish an enemy commander for his inability to control his troops’ behavior would seal “the fate of some future President of the United States and his chiefs of staff and military advisers.”
The Yamashita of the case is Gen. Tomoyuki Yamashita, who was tasked to command Japanese forces in the Philippines in the last phase of the Pacific War. The words of judiciary dissenters sometimes come true, of course.
Here, I think of one painful case. John Harlan, the sole dissenter in Plessy, objected to the majority judgment that the idea of “separate but equal” was acceptable. In so doing, he reminded the eight other members of “this high tribunal, the final expositor of the fundamental law of the land,” that the constitution of the United States “is colorblind, that it neither knows nor tolerates classes among citizens,” and that “the law regards man as man and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved.”
Justice Harlan concluded with a warning: “The judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.” We all know the sufferings that blacks endured for longer than half a century as a result of this wrongful judgment.
Boumediene v. Bush held that the Military Commissions Act of 2006 denying the writ of habeas corpus to those labeled “enemy combatants” is unconstitutional. But at 5-4, it was a close call. Let us simply hope that, in this instance, the four conservative dissenters, led by Chief Justice John Roberts, will prove utterly wrong in their violent disagreement. After all, as Will wrote, “No state power is more fearsome than the power to imprison.”
Translator and essayist Hiroaki Sato’s most recent book is “Japanese Women Poets: An Anthology.”