Earlier this month, members of the Asian-American community gathered at the state Capitol with Gov. Nathan Deal and other officials to observe Fred Korematsu Day — for the man who refused to obey military orders to turn himself in for internment as a Japanese-American during World War II. The U.S. Supreme Court upheld his criminal conviction; one writer notes that the decision is dangerous because it still stands. Another details how Korematsu ultimately was vindicated, and the lessons his case teaches us about civil rights and justice. Korematsu’s daughter tells how her late father made a difference.
By Adam Liptak
WASHINGTON — The Supreme Court’s 1944 decision in Korematsu v. U.S. was a disaster.
Justice Antonin Scalia has ranked Korematsu alongside Dred Scott, the 1857 decision that black slaves were property and not citizens, as among the court’s most shameful blunders. Justice Stephen G. Breyer has written that it has lost all potency as precedent.
But Korematsu has never been overruled.
Calls for the Supreme Court to renounce the ruling started almost immediately after it was issued, and have persisted for 70 years. The problem for the court is that it needs a proper setting in which to overrule a decision. It rules on live controversies, and the mass detention of citizens has not arisen again.
The failure to make a definitive statement may also reflect a lack of judicial creativity. The court can say what it likes about earlier rulings. It would cost nothing but ink to say something about Korematsu.
The court will soon have a chance to do that in a case concerning a 2012 federal law that authorized the military detention without trial of people accused of providing support to terrorist organizations. The law left in place “existing law or authorities relating to the detention of United States citizens.” That would seem to include Korematsu.
In urging the Supreme Court to hear their case, Hedges v. Obama, those challenging the law asked the justices to consider whether Korematsu should be overruled.
The new case is hardly an ideal vehicle.
But Peter H. Irons, a lawyer who discovered evidence of government misconduct in the Korematsu case and later helped its namesake, Fred Korematsu, wipe out his conviction for remaining in a restricted military area, said the new case is an opportunity.
He and other lawyers recently wrote to Solicitor General Donald B. Verrilli Jr. to ask him to join the plaintiffs in asking that Korematsu be overruled. They reminded Verrilli that his predecessor, Acting Solicitor General Neal Kumar Katyal, had in 2011 issued a “confession of error” for the actions of government lawyers in the Korematsu case. Those lawyers, over the protests of underlings, had twisted and withheld evidence from the Supreme Court.
Katyal spoke for the executive branch. Congress has already addressed the matter. In 1982, a congressional commission concluded that the internment of Japanese-Americans was “a grave injustice” animated by “race prejudice, war hysteria and a failure of political leadership.” It added that “the decision in Korematsu lies overruled in the court of history.”
“The Supreme Court is the last branch of government to formally apologize and renounce this,” Irons said. He said the Hedges case could provide an opportunity even if the court declined to hear it, as it is not unusual for justices to append statements to orders denying review. “It would be a very symbolic gesture on the court’s part, especially if it is joined by a majority of the justices,” Irons said of such a statement.
In his dissent in the 1944 Korematsu decision, Justice Robert H. Jackson wrote that the Supreme 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,” he added.
Most lawyers and scholars think the weapon has long been disarmed as a practical matter. But the view is not universal.
“What will we say after another terrorist attack?” Bruce Ackerman, a professor of law at Yale, asked in a 2004 essay. “More precisely, what will the Supreme Court say if Arab-Americans are herded into concentration camps? Are we certain any longer that the wartime precedent of Korematsu will not be extended to the ‘war on terrorism’?”
There are ways for the Supreme Court to answer those questions. It is one thing to disarm a weapon, and another to destroy it.
Adam Liptak is Supreme Court correspondent for The New York Times.
By Dale Minami
Dale Minami led the legal team representing Fred Korematsu in the successful effort to clear his name. Bonnie Youn, principal of the Youn Law Group and secretary of the Georgia Asian Pacific American Bar Association, interviewed Minami on his recent visit to Atlanta. His remarks follow:
After Pearl Harbor, all Japanese-Americans became suspect. And the president issued an executive ordered that sent in essence 120,000 Americans of Japanese ancestry to prisons, without trial, without hearings, without notice of any charges. Fred Korematsu was one of the 120,000 Japanese-Americans, but he was a bit different. He was one of three men who … did not report to the (internment) camps as he was supposed to. He was arrested.
He knew he would get a measure of justice from the United States Supreme Court … but in a very weak decision (Korematsu v. United States), he lost. … Basically, the court ruled that your ethnic affiliation can predispose you to disloyalty if you’re an American of Japanese ancestry.
(In 1982) I was in private practice in Oakland, Calif., and I got a call from Professor Peter Irons, who told me he had discovered evidence that the Supreme Court was defrauded in 1944 when it issued the Korematsu decision. … He produced remarkable notes, letters from the government’s own attorneys, telling their superiors they were telling outright lies … about the loyalty of Japanese-Americans, about acts of espionage and sabotage that were alleged to have occurred but never occurred. (The U.S. District Court of the Northern District of California overturned Korematsu’s conviction on Nov. 10, 1983.)
One person can make a difference in this world by taking a courageous stand. You can make the point also that dissent is not the enemy of loyalty. … The most significant lesson perhaps … is justice is not self-executing. Justice is not a gift. It’s a challenge, that we must continue to fight for these rights. Because the institutions we have, as good as they may be, cannot sustain your rights in a time of crisis. So I think it’s up to us to be activists. It’s up to us to support each other, because when one’s rights go challenged, it’s everybody’s rights that are challenged.
Dale Minami is a San Francisco Bay-area attorney specializing in personal injury law and a partner in the law firm of Minami Tamaki LLP.
By Karen Korematsu
Karen Korematsu, Fred Korematsu’s daughter, spoke to the Georgia Asian American & Pacific Islander Task Force at its recent Fred Korematsu Day event at the state Capitol. She said her parents never spoke of Korematsu v. the United States or the Japanese-American internment, and she first learned of them in high school.
He said simply that it happened a long ago, that he felt what he did was right, and the government was wrong. It was that clear and simple.
For a couple of years after that, I was kind of afraid to ask my father any more questions because I could just see the pain and the hurt in his eyes. … He thought maybe, perhaps, my brother and I might be ashamed of him. So he wanted to wait for us to be a little older so we might understand. … My father, he was never angry, he was never bitter. He didn’t blame anybody. He just was waiting.
(In 1982, Professor Peter Irons) uncovered evidence of government misconduct that would allow my father’s case to be reopened. It was unbelievable. Until that time, I did not know that my father deep down inside had always been looking for someone to help him reopen his case. But he didn’t know how to do that because attorneys cost a lot of money, and he didn’t know any attorneys.
If you really believe you are right, and you want not only for yourself but for this country to make a big difference – that’s the story of Fred Korematsu, of one person who could make a difference. … Not everyone can say that they lived by their principles. But he truly did. So when his conviction was overturned in 1983, he had done this not only for himself and for the Japanese-American community, but for future generations. And this weight was not only lifted off his shoulders but for all those others who had been incarcerated; they had walked around in shame all those years.
He realized that education was important, that in order for something like the Japanese-American internment not to happen again, he had to keep speaking out. So that’s why he crisscrossed the United States and spoke to whomever invited him. He really wanted to make a difference, and that’s why he received the 1998 Presidential Medal of Freedom.
Karen Korematsu is co-founder and executive director of the Korematsu Institute for Civil Rights and Education.