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An Unusual Lobbying Campaign

Yesterday, veteran Court reporter Tony Mauro wrote about a lobbying effort headed by Professor Peter Irons to cleanse the reputation of the Supreme Court resulting from the Korematsu ruling.  As political scientists, we know about the usual efforts to lobby the courts.  Interest groups bring test cases, though this strategy is actually quite rare, take over cases as they climb the appellate court ladder, write amicus briefs to sway the justices, and publish or support law review articles to introduce new ideas or concepts to the legal lexicon.

Irons sent each of the justices an article that presents why the Court should repudiate its 1944 decision.  The basis of Iron’s argument is not that history reveals that the Court decision was wrong, but rather that vital facts were purposely kept from the justices—facts that likely would have altered the outcome of the case. A 2011 statement of the Solicitor General’s office, as Mauro reports, significantly bolsters Irons’s argument.  In this blog post,[1] then acting SG Neal Katyal outlines the purposeful withholding of information by his office.[2]  Mauro also reports that most of the justices have made their stance on this case clear: Korematsu was wrongly decided.  The executive and legislative branches have come to the same conclusion; Irons argues that it is now time for the judicial branch to do likewise formally.

How would the Court follow Irons’s advice?  Mauro reports on a rare practice of “correcting factual errors.”  Essentially, Irons is asking the justice to correct the factual errors then repudiate Korematsu without having an additional case that serves to overturn the decision.  How could the Court do this?  Professor Irons argues that both reversal and repudiation of earlier decisions are not defined by the Supreme Court rules.[3]  Therefore, the justices can consider the evidence from the coram nobis hearings and the Solicitor General’s statement to correct the facts and note that the decision would have been different had this information come to light.  He also argues that any invidious discrimination case can be used to reverse formally the internment decisions.  “The fact that the Court has never before issued such a “repudiation” statement is no bar to the authority of the Justices to take such an action.[4]

Professor Irons makes a good argument and I wholeheartedly agree that the Japanese internment decisions need to be reversed and repudiated.[5]   However, I do not agree that there is no bar to action he requests.  The evidence here is overwhelming, but there are good reasons to embrace historical precedent. One clear consideration is the current political climate.  Like it or not, repudiating this decision creates a new avenue for lobbying the Court.  How long would it be before other groups use additional facts—facts “ignored” by the government—to petition the justices to re-evaluate precedent setting decisions.  The Court might like to take this step for the internment cases and note the extraordinary circumstances, but as with Bush v. Gore the Court can claim that the case won’t be used a precedent, it cannot prevent litigants from finding other uses or cases for the procedure.

Imagine the Court does repudiate the internment cases.  How long will it be before the next request comes?  And, can we hazard a guess what cases will be first on the “need to repudiate” list?

 


[2] It is interesting that the SG’s office makes this statement in May of 2011 and the cornam nobis decision of 1983 (vacating Korematsu’s wrongful conviction) was based on the same evidence.  Professor Irons represented Korematsu in this case.

[3] Peter Irons, The Case for Repudiation, a publication of the Earl Warren Bill of Rights Project, University of California, San Diego, 2013 at 26.

[4] Ibid.

[5] Some years ago, the authors of this blog viewed a Smithsonian exhibit about the internment camps.  One of the most disturbing parts of the exhibit was a section that compared US and Nazi propaganda (How to tell a Jew/Japanese type of literature).  The similarities were striking.

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Filed under Discrimination, The Judiciary, Understanding the U.S. Supreme Court