Monday, June 29, 2020

WORST DECISIONS OF THE SUPREME COURT OF THE UNITED STATES: Korematsu v. United States (323 U.S. 214, (1944))

“They all look alike to a person not a Jap” [1]
In the past several years a few conservative commentators have advanced an argument justifying the United States government’s arrest and incarceration of Pacific Coast American citizens during World War II. One would think that the federal government’s summary concentration of citizen-evacuees in barb-wired, armed guard-towered camps was not only immoral, but would be held unconstitutional by the Supreme Court of the United States. A majority of the Supreme Court of the United States (including the Jewish associate justice, Felix Frankfurter) ruled otherwise.[2]    
The day after the devastating Japanese December 7, 1941, sneak attack at Pearl Harbor (and elsewhere in the Pacific), the United States declared war.
Here in America, events moved quickly.
With the avowed goal of preventing espionage and sabotage, President Roosevelt issued Executive Order No. 9066, allowing the military to create zones within the United States “from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Military Commander may impose at his discretion.” The Order was silent about where our citizens were headed, how they would be transported, the conditions they would be forced to endure once there or how long they would be incarcerated.
Next, the military issued Public Proclamation No. 1: The entire Pacific Coast was subject to Japanese attack and espionage, military zones were being established, and exclusions from those zones of American citizens and others would be enforced.
On March 21, 1942, Congress enacted a law making it a misdemeanor-level crime to “enter, remain in, leave, or commit any act in any military area or military zone contrary to the Military Commander’s orders,” a curfew was imposed, exclusion orders issued, and everyone in Korematsu’s area was prohibited from leaving. A World War II lockdown! Come May, all persons of Japanese ancestry — noncitizens and American citizens alike — were to be excluded from Korematsu’s zone.”
As Justice Roberts explained in his dissent,

The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942. * * * The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. (My italics.)
[Military Commander] General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document — and in the light of the above recitation, I think it is not — that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. (My italics throughout.)
In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner [Korematsu] did nothing.
[At this moment in June 2020, as I write Justice Roberts’ words — “drive all citizens of Japanese ancestry into Assembly Centers” as an integral tool of the “[program] of evacuation and relocation of Japanese,” the Assembly Centers being “a euphemism for a prison”— I am literally experiencing “goose bumps,” as my mind leaps to what was happening at that very moment in March 1942 in Nazi-occupied Europe. The Nazi’s were driving Jews into ghettoes, as an integral tool of the Master Race’s program of evacuation and relocation, and then to concentration camps in furtherance of the “final solution.”]   
Mr. Korematsu was luckier. He was merely indicted in a United States Federal Court.
Convicted of remaining in a place he was legally unable to leave, his sentence was suspended, with five-years’ probation. Doubtless, the leniency was because, as Justice Roberts observed, after the legal proceedings Korematsu was immediately taken into military custody and “confined either in an Assembly Center . . . or has been moved to a Relocation Center. . . .”
Against this factual background, the Supreme Court had to decide whether Koramatsu’s exclusion — actually, the entire federal government exclusion scheme — was constitutional.
In an opinion written by former member of the Ku Klux Klan, Associate Justice Hugo Black, the Supreme Court upheld the prison-like “relocation” scheme.
Even though the Court’s majority was quick to recognize that “most” Japanese-Americans “were loyal to this country,” Black wrote:
. . . we are not unmindful of the hardships imposed by [the Relocation scheme] upon a large group of American citizens. * * * But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. (My italics.)
*          *          *
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.
Black’s majority holding was that the Relocation scheme was constitutional. The exclusion and relocation of Korematsu and the others was sanctified because, under the circumstances, it was           necessary.[3] Pragmatically speaking, deprivation of their freedom “worked.”

Former law professor Felix Frankfurter concurred with the majority’s decision, and with Justice Black’s opinion for the Court. The last two sentences of Frankfurter’s concurring opinion were these:

To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours. (My italics; see Endnote 3.)

Six justices were in the Court’s majority, five concurring in Black’s opinion. Only Frankfurter wrote a concurrence.

There were three dissents.

Roberts’s was disappointing, in the extreme. 

Although characterizing the Assembly Centers as “concentration camps,” he failed to object to their existence. He dissented only because of opposition to the exclusion’s extent and permanence. Not with the government’s constitutional power to assemble and relocate.

As a matter of fact, Roberts conceded that “[t]he liberty of every American citizen freely to come and go must frequently, in the face of sudden danger, be temporarily limited or suspended.”

While Justice Murphy’s muddled dissenting opinion deplored “the ugly abyss of racism,” his quarrel was with the facts: he saw no sufficient military necessity for the exclusion. Like Roberts, Murphy accepted the principle that sometimes the end justifies the means. Just not this time.

The third dissent was Justice Jackson’s:

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. 

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. [Gone if he did, gone if he didn’t] (My italics.)

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four — the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole — only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. (My italics.)

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.[4]
Although Justice Jackson’s words were written in 1944, his were not the last ones spoken by a Supreme Court justice about the Korematsu case. In May 2011, 

Justice Antonin Scalia told students in Hawaii . . . that the Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.
Speaking at the University of Hawaii law school, Scalia responded to a question about the 1944 ruling, which upheld an executive order that required the detention of Japanese Americans during World War II, the Associated Press reports.
“Well, of course, Korematsu was wrong,” Scalia said. “And I think we have repudiated it in a later case. But you are kidding yourself if you think the same thing will not happen again.”
At the time, Scalia said, there was “panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality.”
Korematsu has never been explicitly overruled because there has not been a similar controversy before the court, the New York Times reported last week. The court could get a chance to do so, however, in a case involving the military detention without trial of people accused of aiding terrorism. A cert petition asking the court to overturn the federal law authorizing such detentions says the justices should consider overruling Korematsu.
A federal appeals court had dismissed the case, Hedges v. Obama, on standing grounds. Even if the Supreme Court denies review, it could add a statement renouncing Korematsu, according to lawyer Peter Irons, who helped the Korematsu name plaintiff overturn his conviction for violating a detention order. Irons has joined with other lawyers in asking the solicitor general to ask the court to overturn the 1944 decision.[5]
Among the several lessons to be learned from Korematsu v. United States, two stand out. One is that the Relocation scheme was tainted with anti-Japanese racism from its inception. The other is that racism’s fuel is the government’s sacrifice of some individuals to the needs and wants of others, especially those in power. 

In Korematsu, Japanese-Americans’ liberty was sacrificed to the fear and racism of others. That deprivation was morally and constitutionally wrong, no matter how scared many other Americans were of a Japanese seaborne invasion originating some 5,000 miles away.
And for good measure, shame on Justice Scalia.

[1] Hugo Black, justice of the Supreme Court of the United States. As I wrote in Sweet Land of Liberty? (, “[h]ow ironic that Japan did not subjugate us militarily in World War II, leaving our basic freedoms intact, while our own government undermined them by sacrificing the individual rights of some citizens to the racist fears of others.” Racism, as Ayn Rand has pointed out, 

. . . is the lowest most primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man’s genetic lineage—the notion that a man’s intellectual and characterological traits are produced and transmitted by his internal body chemistry. Which means, in practice, that man is to be judged, not by his own character and actions, but by the character and actions of a collective of ancestors. (Ayn Rand, “Racism,” The Virtue of Selfishness, The New American Library, 1965, p. 172.

[2] One wonders what the precedential implications of the Court’s decision/order in Korematsu would be if a case reaches the Supreme Court challenging the COVID-19 lockdowns.

[3] See M’Culloch v. Maryland, in an earlier blog.

[4] Evidence of the Military Commander’s attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40 (78th Cong. 1st Sess.): 

“I don’t want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast * * *  The danger of the Japanese was, and is now — if they are permitted to come back — espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese.  American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. . . .”

His final report referred to all persons of Japanese ancestry as “subversive,” as members of “an enemy race,” whose “racial strains are undiluted, and as constituting over “112,000 potential enemies. . . at large today” along the Pacific Coast.” Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J.L. DeWitt. Dated June 5, 1943, the Report was not made public until January 1944. (My italics throughout.)

[5]  See Debra Cassens Weiss, ABA Journal, February 4, 2014.

See also, Debra Cassens Weiss, ABA Journal, March 24, 2011, “Acting SG [Solicitor General] Katyal Tells of Mistakes by a Predecessor in World War II Internment Case”:

Acting Solicitor General Neal Katyal is condemning mistakes made by a predecessor who defended the internment of more than 100,000 Japanese-Americans during World War II.

Katyal made his statement in a “distinctly 21st century way”— through a post at The Justice Blog, the Associated Press reports. The BLT: The Blog of Legal Times also has the story. Katyal criticized former Solicitor General Charles Fahy for misleading the U.S. Supreme Court in 1943 and 1944 when he defended the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.

Katyal says Fahy failed to tell the U.S. Supreme Court about an intelligence report that found only a small percentage of Japanese-Americans posed a security threat, and the most dangerous were already known or in custody. Fahy also failed to tell the court that reports of radio communications between Japanese-Americans and enemy submarines had been largely discredited, Katyal writes.

The Supreme Court upheld the convictions of Hirabayashi and Korematsu, and it took nearly a half century to overturn them. Both stories quote University of California political scientist Peter Irons, who in 1981 unearthed the documents showing Fahy’s omissions. “It’s very nice, and long overdue,” he told the BLT.

It is unlikely that whatever the Solicitor General’s evidentiary failings were, the six justice Supreme Court majority would have been swayed. After all, there was a war on! “The need for action was great, and time was short.


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