the Court voted 8 to 1 to strike that down as unconstitutional. The Supreme Court had the last word? No. Despite those decisions, Congress in 1938 once again passed legislation to regulate child labor under the Commerce Clause. The Supreme Court in United States v. Darby (1941) unanimously upheld the statute. The Court decided that its 1918 decision departed from the principles of the Commerce Clause and “should be and now is overruled.” A contemporary example that undercuts judicial finality involves the Japanese-American cases of Hirabayashi (1943) and Korematsu (1944). In both cases, the Supreme Court upheld the decision by President Roosevelt to place a curfew on Japanese Americans and relocate many to detention camps. A major figure in this policy was General John L. DeWitt, who believed that all Japanese, by race alone, are disloyal. On Feb. 20, 1976, President Gerald Ford issued a proclamation apologizing for the treatment of Japanese Americans during World War II. In 1980, Congress established a commission to gather facts and determine the wrongdoing by Roosevelt’s order. The commission’s report stated that the order “was not justified by military necessity” and that the detentions “were not driven by analysis of military conditions.” The principal causes were “race prejudice, war hysteria, and a failure of political leadership.” In 1988, Congress passed legislation that acknowledged the “fundamental injustice” of evacuating, relocating, and interning U.S. citizens of Japanese ancestry. With those actions underway, Hirabayashi and Korematsu returned to court to underscore the extent to which executive officials had deceived the judiciary and the general public. In light of that evidence, their convictions were vacated by lower courts during the 1980s. The Supreme Court had sufficient evidence that its decisions in 1943 and 1944 were invalid but chose not to act. Korematsu was reconsidered in Trump v. Hawaii (2018). For the majority, Chief Justice Roberts noted that the dissent by Justice Sotomayor, joined by Justice Ginsburg, repudiated Korematsu. To Roberts, whatever “rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” The forcible relocation of U.S. citizens to concentration camps had no application to actions by President Trump to
deny certain foreign nationals the privilege of admission. But he then added The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—”has no place in law under the Constitution,” 323 U.S., at 248 ( Jackson, J., dissenting).” If Korematsu was wrong the day it was decided, why did it take the Supreme Court 74 years to finally admit error? Louis Fisher is a visiting scholar at the William and Mary Law School. He served four decades with the Library of Congress as senior specialist in separation of powers with the Congressional Research Service (1970-2006) and specialist in constitutional law with the Law Library of Congress (2006-2010). He is the author of 27 books and more than 600 articles. Many of his articles and congressional testimony are placed on his personal webpage, http://www.loufisher.org.
Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law By Preet Bharara New York: Alfred A. Knopf, 2019 345 pages, $27.95
Reviewed by Jeremy S. Weber
80 • THE FEDERAL LAWYER • July/August 2021
Listeners of Preet Bharara’s popular Stay Tuned with Preet podcast do not just stay tuned for the former U.S. attorney for the Southern District of New York’s legal acumen. What makes Bharara’s podcast so beloved is his gentle humanity and his downright decency that stands out in an age of shouting personalities and intractable politics. For those podcast listeners and for the rest of us, Bharara’s Doing Justice similarly works like a warm blanket on a cold night, reassuring us that capable stewards of the criminal justice system exist. There really are people in positions of power who care about doing things right but care even more about doing the right things. Doing Justice is ostensibly a handbook on the role of the prosecutor, but it is much more of a spiritual guide than a technical manual. Throughout its four sections that track the phases of a criminal matter (inquiry, accusation, judgment, and punishment), Doing Justice stresses the dilemmas and temptations prosecutors face, and the ethical guideposts that the best prosecutors use to resolve these situations. In so doing, Bharara presents a book that is not so much a “howto” for prosecutors but a “what-to.” In his own words, Bharara says that Doing Justice grew out of his desire to provide prosecutors with lessons not from “legal texts and treatises but from the real-life human dilemmas that would perplex them every day.” The book’s four sections are replete with significant and spot-on examples of the dilemmas and moral principles Bharara lays out. For example, in the inquiry section (appropriately, the longest section in the book), Bharara stresses the fact that justice is carried out by fallible human beings, and emphasizes the need for rigor, humility, curiosity and inquiry, and humanity in conducting investigations. He illustrates this with a powerful example of Eric Glisson, a man incarcerated for 17 years for a crime he did not commit, and the U.S. Attorney Office investigator who cared enough to see that the wrong was righted. Similar first-hand accounts from Bharara’s experience pervade the book, from the moving account of a sex worker who was robbed at gunpoint and the prosecutors who cared enough to achieve a conviction, to the wrenching case of a child abducted at infancy and the difficult decision Bharara faced about what sentence to seek when the crime was discovered years later. Doing Justice is filled with high-minded ideals about what justice is, but “Doing” is the
