“ ‘Korematsu’ may be overruled, but it's not to be celebrated,” said the daughter of the man who opposed internment of Japanese Americans in World War II. “Unfortunately with this decision, we are continuing to repeat history.”
Long ago, Fred Korematsu was arrested in San Leandro, California, his home town, for defying an executive order that led to the expulsion or imprisonment of more than 100,000 Japanese Americans after Japan bombed Pearl Harbor.
He later went to the Supreme Court to fight it, much as others now oppose President Donald Trump’s executive order barring people from seven mostly majority-Muslim countries from entering the United States. Korematsu lost in 1944 and, although his criminal conviction was vacated in 1983, the case was not overturned.
More than 30 years after Korematsu challenged, for the second time, what is widely considered one of the most unjust government actions in U.S. history, the country watched another legal battle conclude Tuesday, when the Supreme Court issued its decision in Trump v. Hawaii. The court upheld Trump’s travel ban and overturned Korematsu’s case.
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The irony is that Korematsu’s vindication came as the Supreme Court actualized his worst fear by “racially profiling of a group because they looked like the enemy,” according to Fred Korematsu’s daughter, Karen.
“The Korematsu court presumed people were dangerous because they were of Japanese descent. Today, it is because they are from a particular country,” said Erwin Chemerinsky, who is dean of the University of California at Berkeley Law School and once called the Supreme Court’s ruling against Korematsu “one of the worst decisions in history.” Neither assumption, he said, is rooted in equal protection of the law.
“In the majority opinion, Chief Justice John G. Roberts Jr. wrote, ‘Korematsu was gravely wrong the day it was decided.’ I think a future court will one day say [today’s decision] was a huge mistake,” Chemerinsky said.
Some attorneys, such as Josh Blackman, an associate professor of law at the South Texas College of Law in Houston, disagreed. Blackman believed the two cases were only similar in that they involved classifications based on nationality. The distinction, he said, is that in Korematsu the federal government rounded up citizens and interned them, while Trump dealt with noncitizens who sought entry.
“Entry is a privilege, not a right,” said Blackman. “You’re entitled to laws and due process once you’re in the country, not before.”
Fred Korematsu was not yet 23 on the day Japanese warplanes killed more than 2,000 at Pearl Harbor. Two months later, as he began to fight a world war, President Franklin D. Roosevelt signed an executive order on Feb. 19, 1942, that led to the roundup and imprisonment of every Japanese American on the West Coast.
Korematsu’s parents and siblings reported to military officials, who took them from their home to live in converted horse pens while permanent internment camps were constructed in other states.
Korematsu refused to go.
“Horse stalls are for horses, not for people,” Karen Korematsu recalled her father saying. Japanese Americans, she said, were treated inhumanely and without due process of law. As a young man in San Leandro, Fred Korematsu once had a surgeon cut a bit of flesh from his eyelids – to look less Japanese, less suspicious to his neighbors. It didn’t work.
Korematsu made up a fake name and laid low in a rooming house. He lasted only a few weeks before he was spotted and arrested.
A director for the American Civil Liberties Union visited Korematsu in jail. Roosevelt’s order was popular in polls at the time, but the ACLU thought a judge would agree it was wrong. When the case reached the country’s highest court, one Supreme Court justice strongly agreed with Korematsu – writing that his federal conviction for merely staying home “falls into the ugly abyss of racism.”
But most did not. “Korematsu was not excluded from the Military Area because of hostility to him or his race,” the court ruled. “The military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”
Korematsu learned he’d lost by letter, before being allowed to return to California.
Years later, when she was grown, Karen Korematsu came home one day in 1982 to find her father sitting in his living room with a lawyer named Peter Irons and a stack of old papers. Irons, who was also a political scientist at the University of California at San Diego, had discovered memos never seen during Fred Korematsu’s Supreme Court trial; Irons, who had been researching a book, found the documents in mislabeled boxes belonging to the Justice Department.
In one letter, the general who ordered the internments wrote how the “racial characteristics” of Japanese people made them inherently less loyal.
In another, a naval intelligence officer estimated that fewer than 3 percent of the Japanese population might be saboteurs.
“I thought, ‘My God, there’s probably a lawsuit here,’ ” Irons recalled. So he rounded up three Japanese Americans who had fought their internments at the Supreme Court. The first two were eager for a rematch. And hard as he’d been to track down, Korematsu was game, too.
As the case proceeded, more about the Japanese internment program was being revealed to the country. A document declassified since World War II contained an admission that the program was designed in part to appease “public morale,” The Washington Post reported in 2015.
A congressional panel ruled in 1983 that “race prejudice, war hysteria and the failure of political leadership” prompted the detentions.
Korematsu missed the end of his Supreme Court case in 1944, having been interned along with other Japanese Americans from the coast. But as a federal judge read out her decision in November 1983, Korematsu sat in a packed courtroom. By then, not even the government would defend his conviction.
“Apparently the government would like this court to set aside the conviction without looking at the record in an effort to put this unfortunate episode in our country’s history behind us,” U.S. District Judge Marilyn Hall Patel wrote in her decision.
She refused. Without ruling on the merit of Irons’ documents, she told the courtroom the government’s position was “tantamount to a confession of error.”
At age 63, Korematsu was a pariah and convict no more.
In the remaining years of his life, until his death at age 86, Korematsu would hear apologies from U.S. presidents. He would receive the Presidential Medal of Freedom from Bill Clinton. And his name would sometimes be invoked when someone felt the government was again casting blanket of suspicion on innocent people.
Tuesday was one such day.
“Korematsu may be overruled, but it’s not to be celebrated,” said Karen Korematsu. “Unfortunately with this decision, we are continuing to repeat history.”
For months, Karen Korematsu heard echoes of her father’s old warnings in the way Trump’s order cast suspicion on an entire class of people, and the way its defenders in court made claim to national security without citing any evidence against the people the order affected.
She was reminded that during the campaign, Trump promised a broader ban on Muslim foreigners – as well as a registry of Muslims living in the United States.
She was reminded that one of his top backers cited her father’s case as legal precedent for such things.
“Racial profiling was wrong in 1942 and racial profiling and religious profiling is wrong in 2018,” Karen Korematsu lamented. “The Supreme Court traded one injustice for another 74 years later.”