One of the Supreme Court's Biggest Mistakes: Korematsu v. United States

A sign reading: 'I AM AN AMERICAN', on the Wanto Co grocery store at 401 - 403 Eighth and Franklin Streets in Oakland, California, the day after the attack on Pearl Harbor, 8th December 1941. The store was closed and the Matsuda family, who owned it, were relocated and incarcerated under the US government's policy of internment of Japanese Americans. The sign was installed by Tatsuro Matsuda, a University of California graduate. (Photo by Dorothea Lange/Getty Images)

After the bombing of Pearl Harbor on December 7, 1941, the U.S. government feared the country's west coast was in danger of another attack - from both within, and without. After several years of watching from the sidelines, the United States joined World War II. Americans with Japanese ancestry were accused of spying for Japan. In 1942, the United States military issued Civilian Exclusion Order No. 34, which declared San Leandro, California a military zone and required all Japanese-Americans to leave. Many were sent to "relocation centers," which were essentially internment camps on American soil.

Exclusion Order 34 stemmed from President Franklin Roosevelt's Executive Order 9066. Issued in 1942, it declared that "successful prosecution of the war requires every possible protection against" espionage and sabotage that might jeopardize national defense efforts.

The plaintiff, 23-year-old Fred Toyosaburo Korematsu, was an American citizen who refused to leave San Leandro. He was arrested and convicted of defying a government order. Lawyers from the American Civil Liberties Union approached Korematsu while he was in jail, asking if he would be willing to be the test case to challenge the exclusion order. He agreed, and appealed his case all the way to the Supreme Court, which issued a decision on December 18, 1944.

The Supreme Court Rules Against Korematsu

In a 6-3 decision, the Supreme Court declared that the incarceration of Japanese Americans was a "military necessity," and not the result of racism. The decision can be a frustrating one for modern readers, as the first part of the decision sounds like the Supreme Court will find in Korematsu's favor:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect."

But, in the end, the majority determined that excluding certain citizens from a "threatened area" had a definite and close relationship to the prevention of espionage and sabotage. They concluded that there was no reason to question Congress and military authorities on their conclusion that "there were disloyal members of that population."

Korematsu's attorneys argued that these were American citizens being placed in concentration camps - simply because they looked like an enemy. But, unfortunately, the majority on the court saw it differently. They acknowledged that, if this were true, the case would be a no-brainer: "Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice." However, they drew a distinction between the relocation centers and the "ugly connotations" of a concentration camp. Moreover, they concluded that Congress and the president had the authority to take such actions during wartime.

The decision relied heavily on another Supreme Court case from the previous year, Hirabayashi v. United States. In that case, the justices found that implementing a curfew in these military areas was a necessary protective measure. Like the order in Korematsu, the curfew applied only to people of Japanese descent. The Supreme Court unanimously decided the curfew was appropriate, given the "solidarity" many Japanese Americans felt with Japan. Chief Justice Harlan F. Stone even went so far as to argue that "in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry."

Dissenting Opinions

The Supreme Court's decision in Korematsu v. United States has been criticized for decades. And the three justices who voted against the government in the case did not mince words in their dissenting opinions. Justice Robert Jackson, for example, found there was no evidence to support the incarceration of Japanese Americans and that the court had "for all time" validated racial discrimination.

"The principle then lies about like a loaded weapon," he wrote, "ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

Justice Frank Murphy wrote that exclusion of all persons of Japanese ancestry, whether they were U.S. citizens or not, "goes over the very brink of constitutional power and falls into the ugly abyss of racism."

Justice Owen Roberts concluded that Korematsu had been convicted "without evidence or inquiry concerning his loyalty," and in violation of his constitutional rights. He also pointed out that an earlier order prohibited Japanese Americans from leaving the zones in which they lived, leaving Korematsu with an impossible choice:

"The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp."

Criticism of Korematsu v. United States

In 2011, a group of legal scholars ranked Korematsu with cases like Dred Scott and Plessy v. Ferguson as one of the high court's "Supreme Mistakes." Constitutional law scholar Erwin Chemerinsky said of the decision:

"One of the worst aspects of American history is that at times of crisis we compromise our most basic constitutional rights, and only in hindsight do we recognize that it didn't make us safer."

When Korematsu's case was reopened in the 1980s, U.S. District Court Judge Marilyn Patel wrote that the decision "stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."

In a 1996 article for the UCLA Asian Pacific American Law Journal, Dean M. Hashimoto aptly explained that what is so confusing about the Korematsu decision is the court's "failure to provide a logical explanation for reaching its result and choosing instead to rely on persuasive rhetoric." In other words, the justices relied on the fear that came with the United States entering World War II rather than legal analysis.

What Happened to Fred Korematsu?

Throughout his life, Fred Korematsu continued to work as a civil rights activist, earning the Presidential Medal of Freedom in 1998. In California, January 30 is Fred Korematsu Day.

In 1983, legal historian Peter Irons and researcher Aiko Herzig-Yoshinaga discovered key documents that U.S. intelligence agencies seemingly hid from the Supreme Court during Korematsu's case. According to the Korematsu Institute, these documents showed that several agencies, including the FBI and the Office of Naval Intelligence, "categorically denied that Japanese Americans had committed any wrongdoing" to justify removal. The Asian Law Caucus used these documents as a basis to have Korematsu's case reopened.

The U.S. Justice Department offered Korematsu a pardon if he would drop his claim of governmental misconduct. But as his wife, Kathryn, later remarked, "Fred was not interested in a pardon from the government; instead he always felt that it was the government who should seek a pardon from him and Japanese Americans for the wrong that was committed."

He rejected the DOJ's offer, and on November 10, 1983, a federal court in San Francisco overturned his conviction - 40 years after the Supreme Court ruled against him.

That same year, the Commission on Wartime Relocation and Internment of Civilians (CWRIC), appointed by President Jimmy Carter, concluded that the decision to remove Japanese Americans from their homes came about because of "race prejudice, war hysteria, and a failure of political leadership."

Read the Supreme Court's full opinion from Korematsu v. United States on FindLaw's Cases & Codes.

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