Like a loaded weapon:’ the Korematsu ruling as a threat

The Supreme Court’s decision in Korematsu v. United States (1944), upholding the forced evacuation of American citizens of Japanese descent from their homes for no reason other than their ancestry was, as scholars have characterized it, a national disaster — one that will live in infamy.

For the first time in our nation’s history, the Court, in one swift blow, significantly undermined the writ of habeas corpus, a civil right fundamental to American Constitutionalism. President Franklin D. Roosevelt’s Executive Order No. 9066, issued on Feb. 19, 1942, and the congressional enactment of an authorizing statute a month later, utilized ethnic differences of Japanese Americans as a basis for racial discrimination. The government did not similarly force German Americans or Italian Americans from their homes, even though Congress had declared war on Germany and Italy, as it had on Japan.

The Supreme Court’s decision to uphold a military policy devoid of a factual record demonstrating any acts of sabotage or espionage by Japanese Americans converted the racial prejudices of a few officers into a doctrine of law. It altered the relationship between the military and civilian government, a sensitive matter for a democracy. It provided a precedent for attacks on the civil rights of ethnic groups and, overall, the unequal treatment of citizens and aliens in times of crises, real or imagined.

In a dissenting opinion, Justice Robert H. Jackson captured the essence of the threat of the Korematsu principle when he wrote that it “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” The ruling was based less on the assertion of military necessity — for there was no evidence of disloyalty among this group of citizens — but rather on what Dean Rostow of the Yale Law School described as “ignorant race prejudice.”

The Korematsu case has lived on in American law, politics and morality. It has been the object of enduring condemnation. In 1976, as part of the Bicentennial celebration of the Declaration of Independence, President Gerald Ford rightly stated that we need to “recognize our national mistakes as well as our national achievements.”

February 19, 1942, he added, “is the anniversary of a sad day in American history.” The evacuation and internment of Japanese Americans, he said, “was wrong.”

In 1983, the Commission on Wartime Relocation and Internment of Civilians to review Executive Order No. 9066 declared that the internment decision reflected “race prejudice, war hysteria and a failure of political leadership,” and not military necessity.

The Commission recommended passage by Congress of a resolution, signed by the president, apologizing for the grave injustice inflicted on Japanese Americans.

In 1984, U.S. Federal District Judge Marilyn Patel granted Fred Korematsu’s petition for a rarely sought and rarely granted writ of error “coram nobis” to set aside his conviction for “manifest injustice.” Patel wrote in her opinion that the government had knowingly and intentionally failed to disclose information and details that directly contradicted the military report, grounded in racial prejudice, on which the Supreme Court had relied.

Patel wrote that Korematsu “stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.”

The assertion of military necessity should not avoid rigorous judicial scrutiny and the court “must be prepared” to “exercise its authority to protect all citizens from petty fears and prejudices that are so easily aroused.”

In 1988, America finally formally apologized for the grave injustice the government had inflicted on Japanese Americans. Congress enacted and President Ronald Reagan signed The Civil Liberties Act of 1988, which declared that the internment program had been “motivated largely by racial prejudice” and “wartime hysteria.” In addition to the apology, the act provided for reparations —$20,000—to each of the internees for the government’s deprivation of their liberty and property, and the humiliation they suffered.

Two distinguished public servants led the charge for passage of the legislation: the widely admired former Wyoming senator Alan Simpson and his childhood friend, Norman Mineta. Mineta had been interned in the Heart Mountain relocation camp near Cody, Wyoming, and later was elected to the U.S. House of Representatives and appointed to cabinet posts by two presidents — Bill Clinton and George W. Bush — provided the critical energy and leadership necessary to secure passage of the historic act. Simpson and Mineta were boy scouts and became lifelong friends. A form of justice for Korematsu and the other 120,000 Japanese American citizens, long denied, was finally delivered, not by the Supreme Court, but ironically by the two elective branches.

The Court’s ruling in Korematsu serves as a reminder that Americans cannot always depend on the judiciary to protect the rights and liberties of the citizenry. The Court, as Justice William O. Douglas, wrote, is vulnerable to “the state of public opinion,” which “will often make the Court cautious when it should be bold.” Douglas, like several members of the Korematsu Court, regretted in later life that they had not boldly defended the rights and liberties of Japanese Americans whose very freedom depended on the Justices. On those occasions when governmental officials lose their compass, it is of paramount importance that we citizens do not lose ours.