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Repudiated decision upheld presidential power to counter perceived national security threats

AS CICERO FAMOUSLY WARNED, inter arma enim silent leges—“Laws are muted in times of war.” This axiom often has been invoked—by Justices Antonin Scalia and Stephen Breyer, among others—to explain, if not to excuse, a 1944 Supreme Court decision approving forced relocation from the West Coast and internment in the American interior of some 120,000 Japanese-Americans, about 80,000 of them American citizens.

The ruling is ranked widely among the most shameful decisions in the court’s history. In 1988, Congress passed a resolution of apology for confining Japanese-Americans, and the government followed up by paying $1.6 billion in reparations to almost 82,000 survivors of the episode, including Toyosaburo “Fred” Korematsu, whose legal challenge to the relocation program was the case the justices heard. In 2011, California declared Fred Korematsu’s 92nd birthday a state holiday. In 2018, upholding President Donald Trump’s decree banning visits to the United States by travelers from certain countries, the Supreme Court formally repudiated its 1944 internment decision.

Immediately after airplanes from a Japanese armada attacked Hawaii on December 7, 1941, mainland authorities, fearing leaders of Japanese-American communities would aid the enemy, put 5,500 people in custody. The broader relocation of Japanese-Americans from their homes in Washington, Oregon, California, and Arizona was the work of General John L. DeWitt, who oversaw West Coast military operations. DeWitt took an expansive view of a February 19, 1942, order by President Franklin D. Roosevelt authorizing the services to set up “military areas” from which they had power to exclude anyone they wished. DeWitt initially ordered the region’s Japanese-Americans to stay inside from 8 p.m. to 6 a.m. In May 1942, he demanded they leave their homes and report to local holding areas, from which federal officials moved them to camps in the arid mid-mountain West.

Among many outraged by the order was the American-born Korematsu. The Oakland, California, native was working odd jobs as a welder,

American-born Fred Korematsu fought forced relocation. In 2018, the Supreme Court formally renounced its decision upholding his conviction. (Mandel Ngan/AFP Photo/Getty Images)

having lost a shipyard job when his union expelled its Japanese-American members. Hoping to move with his fiancée to the Midwest, Korematsu refused to report as told to an ad hoc holding center at San Bruno’s Tanforan Race Track, south of San Francisco. He went to ground in San Leandro, south of Oakland, but was quickly discovered. Arrested, he was summarily convicted of failing to report for relocation, given a suspended sentence, placed on five years’ probation, and moved to a Topaz, Arizona, camp.

Throughout, Korematsu legally challenged the process to which the state subjected him, insisting that he and others like him merely “want fair trial to prove their loyalty.” Over reservations at national headquarters, the Northern California arm of the American Civil Liberties Union took Korematsu’s case to test the constitutional validity of the presidential order and the subsequent relocation program.

An appellate court upheld Korematsu’s conviction, triggering Supreme Court review of the larger mass relocation issue. Basically, Korematsu’s lawyers said treating everyone of Japanese descent as a security risk, with no hearing or avenue to prove fealty to the United States, violated the Fifth Amendment guarantee that depriving someone of his or her liberty required “due process of law.”

Before Korematsu v. United States, the justices had to an extent painted themselves into a corner. In June 1943, without dissent, they had OK’d DeWitt’s curfew. In their private meeting after hearing oral arguments in Korematsu, Justice Wiley B. Rutledge said regarding the curfew case, “I knew that if I went along with that order then I had to go along with detention.” Justice Hugo Black in his opinion for the majority admitted that relocation was “a far greater deprivation” than having to stay at home at night, “but exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage.”

Of the five justices who went along with Black, William O. Douglas did so only after writing and then scrapping a dissent—a move Douglas claimed to regret the rest of his life. In his dissent, Justice Frank Murphy refused to whitewash the majority holding; since the government had no trouble determining which German-Americans and Italian-Americans were loyal, OKing undifferentiated treatment of all West Coast Japanese-Americans was nothing more than “legalization of racism,” Murphy wrote.

But Black was not being disingenuous when he wrote that the court had to endorse the policy of moving Japanese-Americans away from the Pacific because “we could not reject the finding of the military authorities.”

General DeWitt broadly construed FDR’s order giving the military discretion in deciding what constituted aiding the enemy. (David Pollack/Corbis via Getty Images)

At core, Korematsu was about presidential power. Clearly, in times of great national peril the chief executive has more leeway to curb civil rights than during normal times. Roosevelt used that power to give the military broad discretion in deciding what constituted threats of espionage and aiding the enemy, and General DeWitt insisted it was administratively impossible to discern between loyal Japanese-Americans and those who might help Tokyo.

The justices, while recognizing the decision’s racial cast, simply could not generate a formula to define when the judiciary could say a president had overreached his war authority. “The Court decided as it did because it could not find a way to protect individual liberties from invasion by the president without at the same time taking away from the president discretionary powers that war might require him to exercise,” Breyer has written.

Today most read Korematsu as a black mark on the High Court’s heritage, but the ruling imposed little burden on the Japanese-Americans involved. That’s because the justices did not release their decision until one day after President Roosevelt had rescinded the internment order—a move Chief Justice Harlan F. Stone knew that the president intended to make shortly after the 1944 election.

Black tried to dilute the decision’s impact by insisting that the court had considered only the demand that Japanese-Americans present themselves at an assembly point, not to the order’s references to relocation or detention camps. Trying to underscore the absence of racial motivation in the outcome, the justices took care to release on the same day their decision in another case. In that finding, the justices unanimously ruled that the government could not bar the return to California of a Japanese-American found loyal and worthy to leave a relocation camp—a decision that, rather than Korematsu, got the headlines.

Moreover, trying to reconcile the detention policy with his emerging strong views on racial equity, Black in his opinion assured the public that the 1942 presidential relocation order had undergone “the most rigid scrutiny” to assure its legitimacy—a more intense standard whose application the court decreed necessary any time race appears to be the basis for curtailing rights. A decade later that requirement underpinned the arguments in Brown v. Board of Education for outlawing racial segregation in public schools and of subsequent victories for civil rights advocates.