Robbins: Korematsu v United States and righting a historic wrong
This is the 11th part of an ongoing series on seminal cases in American law.
The United States Supreme Court is — as its name suggests — the supreme law of the land. To torture a Harry Truman aphorism, the “buck” of controversy stops at the Supreme Court’s desk.
What, though, when the Supreme Court gets it wrong? That, at least in part, is why there are culture wars that swirl about confirmation hearings; will these men or women, if elevated to be justices of the Supreme Court, get it right?
There are instances, of course, where the court has gotten it wrong, sometimes dreadfully so. Dred Scott v. Sanford, an 1857 decision that held that African Americans could not be considered American citizens; Plessy v. Ferguson, a landmark 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine; and, more modernly, Kelo v. City of New London (2005) which sanctioned taking land from one private party to give it to another, and Citizens United v. FEC , a seminal 2010 case which held that political donations are speech protected by the First Amendment, all come quickly to mind as among the most wrongheaded.
Another in this rogues’ gallery of Supreme Court screw-ups is the case of Fred Korematsu.
Korematsu, 23, was an American citizen of Japanese ancestry. Shortly after the Japanese bombing of Pearl Harbor — which brought the U.S. violently into World War II — President Franklin D. Roosevelt signed Executive Order 9066. The order authorized the Secretary of War to remove people of Japanese ancestry from what were designated as military areas and surrounding communities in the United States.
The order set in motion the mass transportation and relocation of more than 120,000 persons of Japanese ancestry to sites the government called detention camps. Most of the people who were relocated lived on the West Coast; two-thirds were American citizens.
Despite the fact that his parents had abandoned their home and their business in order to report to a camp, Fred Korematsu refused. He determined, instead, to stay behind. He had plastic surgery on his eyes to alter his appearance, changed his name to Clyde Sarah, and claimed that he was of Spanish and Hawaiian descent.
On May 30, 1942, about six months after the Japanese attack on Pearl Harbor, the FBI arrested Korematsu for failure to report to a relocation center.
While waiting in jail following this arrest, Korematsu decided to make his case a test case to challenge the constitutionality of the government’s order. He was tried in federal court in San Francisco, convicted of violating military orders issued under Executive Order 9066, given five years on probation, and sent to an “Assembly Center” in San Bruno, California.
But that was not the end of it.
Korematsu appealed to the U.S. Court of Appeals, which agreed with the trial court that he had violated military orders. Korematsu then asked the United States Supreme Court to hear his case. Although it was glaringly obvious that the Executive Order was based on race, on December 18, 1944, a divided Court ruled, in a 6-3 decision, that the detention was a “military necessity” and dodged the issue of is racial basis. In the majority opinion written by Justice Black, the court affirmed Fred Korematsu’s conviction, ruled that the evacuation order was valid, and it was, accordingly, not necessary to address the constitutional racial discrimination issues.
Righting a wrong
In 1983, a pro bono legal team with new evidence re-opened the 40-year-old case in a federal district court on the basis of government misconduct. They demonstrated that the government’s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat. The official reports, including those from the FBI under J. Edgar Hoover, were not presented in court. On November 10, 1983, a federal judge overturned Korematsu’s conviction in the same San Francisco courthouse where he had been convicted four decades earlier.
While the district court ruling cleared Korematsu’s name, the Supreme Court decision still stands. Writing for the majority, Justice Hugo Black held that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and subject to tests of “the most rigid scrutiny,” not all such restrictions are inherently unconstitutional. “Pressing public necessity,” he wrote, “may sometimes justify the existence of such restrictions; racial antagonism never can.”
In a strongly worded dissent, Justice Robert Jackson wrote that, “Korematsu … [was] convicted of an act not commonly thought 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.” The nation’s wartime security concerns, he asserted, were not adequate to strip Korematsu and the other internees of their constitutionally protected civil rights.
So the Korematsu wrong was righted … sorta. Which begs the question I first posed in this column: What happens when the court gets it wrong?
The answer is, it is evolutionary. Usually, the next case must come along in order to right the wrong. Or else the legislature may rebalance the equities that gave rise to the injustice.
While Plessy was never explicitly overruled by the Supreme Court, the Civil Rights Act of 1964 prohibited legal segregation and the Voting Rights Act of 1965 provided for federal oversight and enforcement of voter registration voting. In 1873, the Slaughterhouse Cases effectively overturned Dred Scott. While Kelo and Citizens United have been nibbled at, for now at least, they both remain controlling law.
The process can be maddingly slow. Most times, though, it ultimately bends towards justice.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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