Durbin Invokes SCOTUS Ruling That Upheld Japanese Internment

While trying to catch President Donald Trump’s solicitor general nominee in a “gotcha” moment, Democrat Sen. Dick Durbin apparently defended enforcement of the infamous Supreme Court ruling that upheld the internment of more than one hundred thousand Japanese Americans during World War II.

“Let’s go back to Korematsu — describe for me that circumstance that you think relieved an official from obeying a court order,” Durbin said to solicitor general nominee Dean John Sauer. “As bad as it was, that court order was followed for years, was it not?”

In Korematsu v. U.S., the Supreme Court upheld the internment of 120,000 Japanese civilians during WWII. Sauer said the order “has now been, I think, correctly repudiated by virtually everyone.” 

“I just wonder whether some historians might think we’d be better off if it hadn’t been followed,” Sauer said.

Durbin made the remark while questioning Sauer in his first confirmation hearing on Feb. 26 — alongside Harmeet Dhillon, nominee for assistant attorney general for civil rights, and Aaron Reitz, nominee for assistant attorney general for the Department of Justice’s Office of Legal Policy. If confirmed as solicitor general, Sauer will oversee litigation on behalf of the United States at the Supreme Court.

The exchange started when Durbin asked Reitz if he stood by a post on X that officials can sometimes take actions contrary to court orders. Reitz explained this is “a conservative view of Article Three and the role of courts and their ability to bind parties that are not litigants to the case before it.”

Durbin then turned to Sauer for his opinion. Sauer said he did not want to speak to “hypotheticals,” but “generally, if there’s a direct court order that binds a federal or state official, they should follow it.” 

Durbin asked for exceptions, so Sauer suggested the infamous decisions of Dred Scott v. Sandford (which held free descendants of slaves cannot be citizens) and Korematsu v. U.S. (which upheld the Japanese internment as a “military necessity”).

Durbin then challenged the notion that officials could defy the Korematsu decision. “I want to get into it, because I think it goes to the heart of the question of the future constitutional challenge we face as a nation,” he said. 

Republican Sen. Josh Hawley slammed Durbin for apparently defending Korematsu, which the Supreme Court rebuked as “gravely wrong” and with “no place in law under the Constitution” in 2018. 

“I thought it sounded to me like my friend, Sen. Durbin, was defending the Korematsu decision, which I think is one of the worst and most abhorrent decisions in the history of the United States,” Hawley said. “When we have a decision that is absolutely morally abhorrent — Korematsu, Dred Scott, we can go down the line — should officials who disagree with a morally abhorrent decision just blindly follow it, or do they register their disagreements?”

Sauer said he “strongly agree[d]” with Hawley’s reaction. He also said he used the historical examples to demonstrate that “it’s hard to make a very blanket, sweeping statement about something without being presented with the facts and the law that applied in that particular scenario.”

“There is no hard and fast rule about whether, in some, in every instance, a public official is bound by a court decision,” Reitz added. “There are some instances in which he or she may lawfully be bound, and other instances in which he or she may not lawfully be bound.”

Hawley cited the Fugitive Slave Act of 1850 — which required law enforcement even in free states to return suspected escaped slaves — as an example of when judges resigned rather than enforce a morally repugnant law. He said that “the United States might be a better place if more of them had done so.”

“I can’t believe that it’s the position of anybody on this committee that in the face of decisions like Korematsu and Dred Scott and the Fugitive Slave Act that we should say to people, ‘Oh, just grin and bear it. Don’t say anything, enforce the law,’” Hawley said. “For heaven’s sake. I mean, good heavens.”

Logan Washburn is a staff writer covering election integrity. He is a spring 2025 fellow of The College Fix. He graduated from Hillsdale College, served as Christopher Rufo’s editorial assistant, and has bylines in The Wall Street Journal, The Tennessean, and The Daily Caller. Logan is from Central Oregon but now lives in rural Michigan.