Korematsu v. United States

Korematsu v. United States butt lickers
Supreme Court of the United States
Argued October 11–12, 1944 Decided December 18, 1944
Full case name	Fred Korematsu v. United States
Citations	323 U.S. 214 (more) 65 S. Ct. 193; 89 L. Ed. 194; 1944 U.S. LEXIS 1341
Case history
Prior	Certiorari to the Circuit Court of Appeals for the Ninth Circuit
Holding
The exclusion order leading to Japanese American Internment was constitutional.
Court membership
Chief Justice Harlan F. Stone Associate Justices Owen Roberts · Hugo Black Stanley F. Reed · Felix Frankfurter William O. Douglas · Frank Murphy Robert H. Jackson · Wiley B. Rutledge
Case opinions
Majority	Black, joined by Stone, Reed, Douglas, Rutledge, Frankfurter
Concurrence	Frankfurter
Dissent	Roberts
Dissent	Murphy
Dissent	Jackson
Laws applied
Executive Order 9066; U.S. Const. amend. V

Korematsu v. United States, 323 U.S. 214 (1944), was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II.

In a 3-6 decision, the Court sided with the government, ruling that the exclusion order was constitutional. The opinion, written by Supreme Court justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu's individual rights, and the rights of Americans of Japanese descent. (The Court limited its decision to the validity of the exclusion orders, adding, "The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.") During the case, Solicitor General Charles Fahy suppressed evidence by keeping from the Court a report from the Office of Naval Intelligence indicating that "there was no evidence Japanese Americans were disloyal, were acting as spies or were signaling enemy submarines."

The decision in Korematsu v. United States has been very controversial. Korematsu's conviction for evading internment was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of coram nobis. In a ruling by Judge Marilyn Hall Patel, the United States District Court for the Northern District of California granted the writ (that is, it voided Korematsu's original conviction) because in Korematsu's original case, the government had knowingly submitted false information to the Supreme Court that had a material effect on the Supreme Court's decision.

The Korematsu decision has not been explicitly overturned, but remains significant both for being the first instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a handful of cases in which the Court held that the government met that standard.

Introduction

Japanese American Internment Center

On May 19, 1942, during World War II, Japanese Americans were compelled to move into relocation camps by Civilian Restrictive Order No. 1, 8 Fed. Reg. 982. This order, and other similar orders, were based upon Executive Order 9066 (February 19, 1942).

Fred Korematsu was a Japanese-American man who decided to stay in San Leandro, California and knowingly violate 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 Fourteenth 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.

Suppression of evidence by the Solicitor General

In 2011, Acting Solicitor General Neal Katyal released a statement reporting that his predecessor Charles Fahy had suppressed critical evidence during this case, Hirabayashi v. United States, and Yasui v. United States:

"By the time the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

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.

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 R. 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.

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

Fred Korematsu

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...

See also

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• List of United States Supreme Court cases, volume 323
• United States Executive Order 9066
• Japanese American internment
• Wayne M. Collins — Plaintiff's attorney in Korematsu v. United States
• Reference re Persons of Japanese Race [1946] S.C.R. 248 — similar Canadian decision
• Liversidge v. Anderson, UK case of an internee under Defence Regulation 18B
• Rasul v. Bush — 2004 Supreme Court case concerning the Guantánamo Bay prisoners

Further reading

• Biskupic, Joan (2004-04-18). "Prisoners test legal limits of war on terror using Korematsu precedent". USA Today.
• Levy, Robert A. (2008). "Civil Liberties Versus National Security". The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 127–142. ISBN 9781595230508. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Rountree, Clarke (2001). "Instantiating the law and its dissents in Korematsu v. United States: A dramatistic analysis of judicial discourse". The Quarterly Journal of Speech. 87 (1): 1–24. doi:10.1080/00335630109384315. ISSN 0033-5630. {{cite journal}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
• Serrano, Susan Kiyomi (2003). "Korematsu v. United States: A 'Constant Caution' in a Time of Crisis". Asian Law Journal. 10: 37. ISSN 1078-439X. {{cite journal}}: Cite has empty unknown parameter: |month= (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 113–126. ISBN 9780807000366. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)

External links

Works related to Korematsu v. United States at Wikisource

• Text of Korematsu v. United States, 323 U.S. 214 (1944) is available from: Findlaw  Justia 
• Of Civil Wrongs and Rights, official site (2001 P.O.V. documentary on the 1983 coram nobis case)
• A documentary on Korematsu v. United States