Korematsu v. United States

Introduction

Shortly after the second wave of the attack on Pearl Harbor, Japanese pilot Shigenori Nishikaichi crash-landed his aircraft on the Hawaiian island of Niihau. Island locals—not yet knowing of the attack, but aware of the heavily strained diplomatic relations between the U.S. and Japan—quickly detained the pilot and seized documents he was carrying. Three persons of Japanese descent who lived on the island—Ishimatsu Shintani, and Yoshio and Irene Harada—were informed of the detained pilot as they were the only island residents who could speak both Japanese and English. Of these three, Shintani was a Japanese-born immigrant (issei), and the Haradas were American-born children of such immigrants (nissei). Awaiting the arrival of the island's owner to decide what to do next, the islanders housed Nishikaichi with the Japanese-Americans, but also provided a detail of four sentries for additional security.

Five days later, the Haradas aided Nishikaichi in an escape attempt, taking some islanders hostage as Shintani attempted to retrieve the documents seized from the pilot. As the captors became fatigued, the hostages attacked, killing Nishikaichi. Realizing the escape plan had failed, Yoshio Harada then committed suicide. Historian Gordon Prange notes that it was "the rapidity with which the three resident Japanese went over to the pilot's cause" which troubled the Hawaiians. "The more pessimistic among them cited the Niʻihau incident as proof that no one could trust any Japanese, even if an American citizen, not to go over to Japan if it appeared expedient." A U.S. Navy report issued in late January 1942 concluded that the Niihau incident evidenced the "likelihood that Japanese residents previously believed loyal to the United States may aid Japan."

Approximately three weeks later, on February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, authorizing the War Department to create military areas from which any or all Americans might be excluded, and to provide for the necessary transport, lodging, and feeding of persons displaced from such areas. On March 2, 1942, the U.S. Army Lieutenant General John L. DeWitt, commander of the Western Defense Command, issued Public Proclamation No. 1, demarcating western military areas and the exclusion zones therein, and directing any "Japanese, German, or Italian aliens" and any person of Japanese descent to inform the U.S. Postal Service of any changes of residence. Further military areas and zones were demarcated in Public Proclamation No. 2.

In the meantime, War Secretary Henry L. Stimson mailed to Senator Robert Rice Reynolds and U.S. House Speaker Sam Rayburn draft legislation authorizing the enforcement of Executive Order 9066. By March 21, Congress had enacted the proposed legislation, which President Roosevelt signed into law. On March 24, 1942, Western Defense Command began issuing Civilian Exclusion orders, commanding that "all persons of Japanese ancestry, including aliens and non-aliens" report to designated assembly points. With the issuance of Civilian Restrictive Order No. 1 on May 19, 1942, Japanese Americans were forced to move into relocation camps.

Fred Korematsu was a Japanese-American man who decided to stay in San Leandro, California and knowingly violated Civilian Exclusion Order No. 34 of the U.S. Army. Fred Korematsu argued that the Executive Order 9066 was unconstitutional and that it violated the Fifth Amendment to the United States Constitution. He was arrested and convicted. No question was raised as to Korematsu's loyalty to the United States. The Circuit Court of Appeals affirmed the conviction, and the Supreme Court granted certiorari.

Decision

The decision of the case, written by Justice Hugo Black, found the case largely indistinguishable from the previous year's Hirabayashi v. United States decision, and rested largely on the same principle: deference to Congress and the military authorities, particularly in light of the uncertainty following Pearl Harbor. Justice Black further denied that the case had anything to do with racial prejudice:

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.

Felix Frankfurter's concurrence

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear, and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Hirabayashi v. United States, 320 U.S. 81, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." Hirabayashi v. United States, supra, at 93, and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as "an [p225] unconstitutional order" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are, of course, very different. But, within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The war power of the United States, like its other powers ... is subject to applicable constitutional limitations," Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. To recognize that military orders are "reasonably expedient military precautions" in time of war, and yet to deny them constitutional legitimacy, makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177. 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.

Murphy's dissent

Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism," and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy." He also compared the treatment of Japanese Americans with the treatment of Americans of German and Italian ancestry, as evidence that race, and not emergency alone, led to the exclusion order which Korematsu was convicted of violating:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

Justice Murphy's two uses of the term "racism" in this opinion, along with two additional uses in his concurrence in Steele v Louisville & Nashville Railway Co, decided the same day, are among the first appearances of the word "racism" in a United States Supreme Court opinion. The first appearance was in Justice Murphy's concurrence in Ex parte Endo, 323 U.S. 283 (1944). The term was also used in other cases, such as Duncan v. Kahanamoku, 327 U.S. 304 (1946) and Oyama v. California, 332 U.S. 633 (1948). It then disappeared from the court's lexicon for 18 years—it reappeared in Brown v. Louisiana, 383 U.S. 131 (1966). It did not appear in Loving v. Virginia, 388 U.S. 1 (1967), even though that case did talk about racial discrimination and interracial marriages.

Roberts's dissent

Justice Roberts's dissent also acknowledges the racism inherent in the case although he does not use the word. He recognized that the defendant was being punished based solely upon his ancestry.

"This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, 320 U.S. 81, [p226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated."

Jackson's dissent

By contrast, Justice Robert Jackson's dissent argued that "defense measures will not, and often should not, be held within the limits that bind civil authority in peace," and that it would perhaps be unreasonable to hold the military, who issued the exclusion order, to the same standards of constitutionality that apply to the rest of the government. "In the very nature of things," he wrote, "military decisions are not susceptible of intelligent judicial appraisal." He acknowledged the Court's powerlessness in that regard, writing that "courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint."

He nonetheless dissented, writing that, even if the courts should not be put in the position of second-guessing or interfering with the orders of military commanders, that does not mean that they should have to ratify or enforce those orders if they are unconstitutional. Indeed, he warns that the precedent of Korematsu might last well beyond the war and the internment:

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Jackson acknowledged the racial issues at hand, writing:

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. [...] [H]is 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. 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. 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.

Subsequent history

Former Supreme Court Justice Tom C. Clark, who represented the U.S. Department of Justice in the "relocation", writes in the Epilogue to the book Executive Order 9066: The Internment of 110,000 Japanese Americans (written by Maisie and Richard Conrat):

The truth is, the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066...

But the late Supreme Court Chief Justice, William H. Rehnquist had a somewhat different view. He had this to say in his 1998 book All the Laws But One – Civil Liberties in Wartime, p. 124: "An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors."

On May 20, 2011, Acting Solicitor General Neal Katyal released an unusual statement denouncing one of his predecessors, Solicitor General Charles H. Fahy. He accused Fahy of having "suppressed critical evidence" in the Hirabayashi and Korematsu cases before the Supreme Court during World War II.

The historical record shows that the allegedly suppressed document, known as the Ringle Report, did not originate within "the Office of Naval Intelligence," but was written by a junior intelligence officer in the field and was specifically disavowed by the Office of the Chief of Naval Operations in a letter to the FBI dated February 14, 1942. The letter enclosed a copy of the report, and stated that the report "…does not represent the final and official opinion of the Office of Naval Intelligence." Only two years after the "internment" did the FCC and FBI officially state they had found no evidence of collaborationist radio transmissions by Japanese Americans being sent from the West Coast, but they did find some evidence of such illicit radio transmissions from Hawaii. Accordingly, it was long felt that any suspicion of "suppression of evidence" by Solicitor General Fahy was ill-advised. Korematsu's vindication in 1983, however, was a ruling that the internment was fatally flawed.

Katyal remarked in 2011 that, in the pre-war era of ethnic segregation in public accommodations, which on the West Coast included wide refusal of equal treatment of "Japs," the Chief's office was easily prejudiced to disavow the Ringle Report in its 1942 letter. He noted that Fahy's subordinates had actually alerted Fahy in writing that failing to investigate that report, or at least to disclose its existence in the briefs or argument in the Supreme Court, "might approximate the suppression of evidence." Thus, Katyal concluded that Mr. Fahy "did not inform the Court that a key set of allegations used to justify the internment" had been doubted, if not fully discredited, within the government's own agencies.

Katyal therefore announced his office's filing of a formal "admission of error" negating the precedent value of the Supreme Court decision the government had thereby won. He reaffirmed the extraordinary duty of the Solicitor General to address the Court with "absolute candor," due to the "special credence" the Court explicitly grants to his court submissions.

Eleven lawyers who had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in successful efforts in lower federal courts to nullify their convictions for violating military curfew and exclusion orders sent a letter dated January 13, 2014 to Solicitor General Donald Verrilli Jr. In light of the appeal proceedings before the U.S. Supreme in Hedges v. Obama, the lawyers asked Verrilli to ask the Supreme Court to overrule its decisions in Korematsu, Hirabayashi (1943) and Yasui (1943). If the Solicitor General shouldn't do this, they asked that the United States government to "make clear" that the federal government "does not consider the internment decisions as valid precedent for governmental or military detention of individuals or groups without due process of law [...]."

On February 3, 2014, Justice Antonin Scalia, during a discussion with law students at the University of Hawaii at Manoa William S. Richardson School of Law, said that "the Supreme Court's Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time." In October 2015 at Santa Clara University Scalia told law students that Justice Jackson's dissenting opinion in Korematsu was the past court opinion he admired most, adding "It was nice to know that at least somebody on the court realized that that was wrong."

Donald Trump's Presidential election led Kansas Secretary of State Kris Kobach to advocate for Trump to implement immigration controls like the National Security Entry-Exit Registration System. One Trump supporter, Carl Higbie, said that Jimmy Carter's 1980 restriction on Iranian immigration, as well as the Korematsu decision, gives legal precedent for a registry of immigrants. Critics of Higbie argued that Korematsu should not be referenced as precedent. Constitutional lawyer Bruce Fein argued that the Civil Liberties Act of 1988 granting reparations to the Japanese Americans who were interned amounts to Korematsu having been overturned by history – even though the Supreme Court has not explicitly overturned it. Another critic of Higbie described Korematsu as a "stain on American jurisprudence."

According to Harvard University's Felix Frankfurter Professor of Law Noah Feldman, "a decision can be wrong at the very moment it was decided – and therefore should not be followed subsequently." Justice Anthony M. Kennedy applied this approach in Lawrence v. Texas to overturn Bowers v. Hardwick and thereby strike down anti-sodomy laws in 14 states. The implication is that decisions which are wrong when decided should not be followed even before the Court reverses itself, and Korematsu has probably the greatest claim to being wrong when decided of any case which still stands. Legal scholar Richard Primus applied the term "Anti-Canon" to cases which are "universally assailed as wrong, immoral, and unconstitutional" and have become exemplars of faulty legal reasoning. Plessy v. Ferguson is one such example, and Korematsu has joined this group – as Feldman put it, "Korematsu's uniquely bad legal status means it's not precedent even though it hasn't been overturned."