48. International War Crimes Tribunals and the Post-World War II Court
After summarizing a slew of major pending emergency applications, we take a quick look back at the Court's strange role in (not really) reviewing post-World War II international war crimes trials
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):
On the Docket
The Court is closed today for the federal holiday. Thus, we expect an Order List coming out of last Friday’s Conference tomorrow at 9:30 ET, followed by week two of the justices’ October argument calendar, with three arguments— highlighted by Wednesday’s dispute over racial gerrymandering and vote dilution in South Carolina. (There were no cert. grants last Friday, so tomorrow’s orders could include the addition of cases to this term’s calendar, too.)
But the real drama out of the Court in the next week or two is likely to come from the shadow docket, as the justices consider (at least) four significant emergency applications, three of which raise, in some respect, perhaps the meta-question of the entire term: Just how out of touch is the Fifth Circuit with the three “median” justices (the Chief Justice and Justices Kavanaugh and Barrett).
The first is the still-pending application from the federal government seeking a stay of a Louisiana district court injunction barring a wide range of contacts between numerous government officials and agencies and social media companies. The Fifth Circuit, granting a petition for rehearing, narrowed its stay last week—meaning that the injunction, if it goes into effect, would be even broader. That led the Solicitor General to go back to the Court last Friday and urge the justices to resolve the stay application one way or the other. Given that the Court was already close to ruling on this application two weeks ago, some kind of decision this week seems like a good bet. (Like betting on the New York Giants to get crushed. Sigh.)
Speaking of mischief from the Fifth Circuit, the Biden administration filed another emergency application on Friday, criticizing the Fifth Circuit and Judge Reed O’Connor for “an affront to basic principles of vertical stare decisis.” In short, after the Court stayed Judge O’Connor’s nationwide injunction against the Biden administration’s “ghost guns” rule back in August, O’Connor nevertheless entered additional injunctions barring enforcement of the rule against two plaintiffs (and the Fifth Circuit refused to stay those injunctions). So the Biden administration is asking the Court to stay those injunctions, as well—in light of the stay of the nationwide injunction of the same rule back in August. Justice Alito, in his capacity as circuit justice for the Fifth Circuit, quickly granted an “administrative stay.” And perhaps in tacit recognition that the deadlines he has set on prior administrative stays have been too short and have expired at midnight for no good reason, Alito’s stay runs through 5 p.m. (EDT) next Monday, October 16. He can always extend that again, but this appears to tee up a ruling no later than next Monday afternoon.
Speaking of the mischief from the Fifth Circuit (no, this is not a typo), the Court is also sitting on a pair of emergency applications asking the justices to vacate the Fifth Circuit’s fairly stunning writ of mandamus directed to the district court in the Louisiana redistricting case (to which the justices had returned the case after and in light of their June ruling in the very similar Alabama redistricting dispute). Louisiana’s response to those applications is due by 5:00 (EDT) tomorrow, so we might also see a ruling on these applications sometime this week.
Finally, in a significant emergency application not involving the Fifth Circuit, Missouri is asking the Court to put back into effect its “Second Amendment Preservation Act,” which bars any cooperation by local or state law enforcement officials with enforcement of federal statutes that, in Missouri’s view, violate the Second Amendment. The federal government sued Missouri, arguing that its law violates the Supremacy Clause. The district court agreed, and entered a preliminary injunction. And the Eighth Circuit summarily denied Missouri’s application to stay the injunction. So Missouri is asking the Court to put its law back into effect while its appeal works its way through the courts—so that it can continue to frustrate enforcement of federal gun laws that it thinks, but no federal court has held, is unconstitutional. Justice Kavanaugh, as circuit justice for the Eighth Circuit, ordered the federal government to respond by 4:00 (EDT) tomorrow, so this may also provoke a ruling sometime this week.
After a surprisingly quiet term on the emergency docket last year, the October 2023 Term’s version may get off to a very loud start later this week (or next).
The One First “Long Read”: Deconstructing Hirota
This fall marks the 75th anniversary of one of the stranger rulings to come out of the Supreme Court—the cryptic, unsigned December 1948 decision in Hirota v. MacArthur, in which the Court turned away an effort by 11 of the “Class A” defendants convicted and sentenced to death or lengthy terms of imprisonment by the International Military Tribunal for the Far East to have the justices review the judgments in their cases. Hirota was the last of a series of attempts to challenge post-World War II international war crimes tribunals in the U.S. Supreme Court—suggesting, however implicitly, that multinational efforts to hold war criminals responsible were beyond the Court’s power to review, no matter how dominated those proceedings had been by U.S. officials. (The Court’s 1950 decision in Johnson v. Eisentrager arose out of a wholly U.S. military commission trial in China.)
Baron Kōki Hirota, the “‘godfather’ of Japanese politics in the 1930s,” was the one civilian sentenced to death by the IMTFE. A one-time Prime Minister of Japan and Foreign Minister during the earliest stages of World War II in Asia, Hirota was convicted on three of nine counts—for his role as one of the leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or “conspiracy . . . [to wage] . . . wars of aggression, and wars in violation of international law”; for “waging a war of aggression against . . . . China”; and for deliberately and recklessly disregarding his duty to take adequate steps to prevent atrocities. Effectively, Hirota was convicted for his complicity in the Rape of Nanking. One of twenty-eight “Class A” defendants tried before the IMTFE, Hirota was one of the eleven who sought post-conviction relief from the U.S. Supreme Court.
The relief Hirota sought was, to be sure, atypical. Bypassing the lower federal courts, Hirota filed a petition for a writ of habeas corpus directly in the U.S. Supreme Court, invoking the Court's “original” jurisdiction over such petitions pursuant to section 14 of the Judiciary Act of 1789, the descendant of which provides that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” Although irregular, the procedure was hardly uncommon, especially after World War II. Instead, Hirota's was one of hundreds of similar applications for “original” habeas relief filed in the U.S. Supreme Court by Axis prisoners convicted of war crimes by American or Allied military tribunals. Part of why these so many of the petitioners in these cases went straight to the Supreme Court was because the justices had recently held that detainees had to challenge their detention in the district in which they were confined. Although the opinion in Ahrens v. Clark had specifically reserved what the rule would be for those detained outside of any district, lower courts held that it applied to those cases, as well—forcing these cases onto the justices’ “original” docket.
And although it may seem odd that Hirota and his fellow petitioners asked the Supreme Court to review an international military tribunal, the petitioners’ basic claim was that the tribunal was “international” in name only, and was truly under the supervision and control of U.S. General Douglas MacArthur—in his capacity as Supreme Commander of the Allied Powers in Japan. Surely, the petition argued, the Court had jurisdiction over MacArthur. And if MacArthur had acted in violation of the Constitution (which the petitioners alleged he had), it ought to follow, they argued, that the Supreme Court could review and remedy such a violation.
By the time the petition in Hirota was filed, the Court had denied every other original application without argument or an opinion (and usually by a 4-4 vote with Justice Jackson recused). Jackson categorically recused from every single case involving German war crimes, owing to his conflicting role as the Chief U.S. Prosecutor at the International Military Tribunal at Nuremberg. And in the two Japanese cases to reach the Court before Hirota, Jackson recused for a related reason: He was not conflicted; he was simply physically unavailable to participate while he was conducting his other duties in Germany. Thus, in perhaps the highest-profile example, the Court divided 4-4 over whether it should review the war crimes prosecution of seventy-four German soldiers convicted at Dachau for their role in the Malmedy massacre. Chief Justice Vinson and Justices Reed, Frankfurter, and Burton wrote that the Court lacked jurisdiction; Justices Black, Douglas, Murphy, and Rutledge would at least have held argument on the question. But without Justice Jackson, the Court, which needed five votes to conclusively resolve these original cases, was deadlocked.
What made Hirota different was Jackson’s willingness to break the tie, at least on whether the Court should hear argument on whether it had jurisdiction, a move he justified in a fascinating short opinion reflecting on his role—almost surely a response to the highly unusual fact that the Chief Justice and Justices Reed, Frankfurter, and Burton publicly dissented from the purely procedural order setting the case for argument. Jackson would otherwise recuse himself from the subsequent proceedings (once his vote no longer mattered). On the merits, the per curiam decision denying the applications ran only three short and largely inscrutable paragraphs. The only other opinion—a lengthy concurrence by Justice Douglas—was filed more than six months later on the last day of the October 1948 Term. And Justice Wiley Rutledge, who announced that he was reserving his decision for a later date, died almost an entire year later without ever recording his vote, perhaps the only non-recusal “abstention” ever recorded in the U.S. Reports.
Ultimately, Hirota held that the Court lacked jurisdiction over the petitions. But at Justice Black’s explicit request at Conference, the opinion of the Court was deliberately vague as to why. There were two possibilities: The first was specific to the Supreme Court, and rested on the view that the Court could not exercise original jurisdiction over claims by Axis war criminals (without regard to whether it could hear appeals from lower courts in the same cases). The idea here was that the war crimes tribunals were not “inferior” courts under Article III, and so the only way the Court could review them was by exercising its constitutional original jurisdiction—which Article III limits to cases affecting (current) ambassadors and those in which a state is a party. The second was about whether the federal courts in general could hear these cases—whether the “judicial power of the United States” could extend to the review of the judgments of foreign or international military tribunals.
Although the Supreme Court was unclear about which ground it was relying upon, the D.C. Circuit subsequently read Hirota broadly—to also foreclose the jurisdiction of lower courts to entertain collateral attacks on foreign or multinational criminal convictions. But in 2008, the Supreme Court suggested that Hirota ought to be construed more narrowly in cases brought by two U.S. citizens held by the United States in Iraq who sought to block their transfer to the custody of Iraqi criminal courts. So Hirota’s continuing precedential force is debatable, at best.
But the background to and resolution of Hirota provides a fascinating lesson into the justices’ behavior—first in agreeing to decide whether they could hear the case and then saying no in an opinion that deliberately refused to be clear as to why. Maybe the justices who opposed even holding argument had the better of things. And yet, perhaps the strongest sign that the Court likely did have the power to act in Hirota that the majority disclaimed was the behavior of General MacArthur himself: MacArthur waited until the Court handed down its decision before carrying out the sentences. Hirota was executed shortly after midnight, local time, on December 23, 1948—less than three days after the Supreme Court handed down its decision in his case. It’s hard to see that timing as a coincidence.
SCOTUS Trivia: The Sequencing of the Court’s Published Reporters
Thanks to Justice Douglas’s belated concurring opinion, Hirota is also a good example of a phenomenon that can confuse researchers: the different sequencing of the Court’s two most cited reporters, the official United States Reports (U.S.), and the unofficial, but often faster, Supreme Court Reports (S. Ct.). The Supreme Court Reports are strictly chronological, so that Douglas’s concurrence shows up alongside the Court’s other actions from June 1949, not right after the December 1948 majority opinion (the former is cited at 69 S. Ct. 1238; the latter at 69 S. Ct. 197. But the U.S. Reports are not strictly chronological. Instead, the Court’s Reporter of Decisions follows various (unspoken) conventions for the order in which decisions and opinions appear in the Court’s official compendium before it is published, usually several years after the relevant decisions have been handed down. Thus, consecutive decisions in the U.S. Reports can be out of chronological order, and it may not always be obvious to readers when a decision in the U.S. Reports came with non-contemporaneous separate opinions. Readers, beware.
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Happy (holiday) Monday, everyone. I hope that you have a great week.
Thanks for the fascinating insights - past, present and future.