On December 18, 1944, the Supreme Court announced one of its most controversial decisions ever. The Korematsu decision is still controversial, since it allowed the federal government to detain a person based on their race during a wartime situation.
Several years ago, a panel of Supreme Court scholars met at Pepperdine University to discuss what they had determined as the five biggest mistakes made by the Court.
The Korematsu case ranked with the Dred Scott and Plessy v. Ferguson decisions as the worst ever made by the Court.
"One of the worst aspects of American history is that at times of crisis we compromise our most basic constitutional rights, and only in hindsight do we recognize that it didn't make us safer," said Erwin Chemerinsky, from the University of California Irvine.
To put that in context, the Dred Scott decision said that the descendants of slaves weren't entitled to protection by the Constitution. The Plessy decision established the “separate but equal” rule that allowed segregation to continue for decades.
Jamal Greene, another scholar, ranked Korematsu among four “worst-case” scenarios in a 2011 Harvard Law Review article (along with Dred Scott, Plessy and the Lochner labor-law case).
Greene looked at the frequency of law review articles about decision that were anti-canonical, or anti-precedent. Korematsu was ranked as the fourth most-mentioned case.
Peter Irons, a law professor who represented Fred Korematsu in his 1983 successful effort to get his wartime conviction overturned, is campaigning to get the Supreme Court to apologize for its 1944 decision.
Irons says the Court should “issue a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court … that has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.”
In 2009, Los Angeles Times Supreme Court correspondent David G. Savage wrote in the ABA Journal that Dred Scott, Plessy and Korematsu were the three Supreme Court decisions that liberals and conservatives agreed were historically bad.
“After that, it depends on which side of the political aisle the experts occupy,” he said.
So what led to the Korematsu decision?
On December 7, 1941, Japanese military forces attacked the United States base in Hawaii without warning. More than 2,000 Americans died in the attack, and a united Congress answered President Franklin Roosevelt’s request for war.
In early 1942, President Roosevelt issued Presidential Executive Order 9066, after fears generated by the Japanese attack made the safety of America's West Coast a priority.
The order started a process that gave the military power to exclude citizens of Japanese ancestry from regions called “military areas.”
Under another provision, called Exclusion Order No. 34, a Japanese-American citizen named Fred Toyosaburo Korematsu was arrested for going into hiding in Northern California after refusing to go to an internment camp.
There were 10 camps set up nationally, and about 120,000 people were interned in the camps during the war. About two-thirds of them were Japanese-Americans who were born in the United States.
Korematsu appealed his conviction through the legal system, and the Supreme Court agreed to hear the case in late 1944.
The court had heard a similar case in 1943, Hirabayashi v. United States, and decided that Gordon Hirabayashi, a college student, was guilty of violating a curfew order.
The Korematsu v. U.S. decision referenced the Hirabayashi case, but it also ruled on the ability of the military, in times of war, to exclude and intern minority groups.
The court ruled by a 6 to 3 vote that the government had the power to arrest and intern Fred Korematsu. Justice Hugo Black, writing for the majority, included a paragraph that is still debated today:
“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,” Black said.
Later in the decision, Black argued the necessity of the military’s decision.
“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,” he said.
The three dissenting Justices said Korematsu’s constitutional rights had been clearly violated.
“I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights,” said Justice Owen Roberts.
“Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism,” said Justice Frank Murphy. “The broad provisions of the Bill of Rights... are [not] suspended by the mere existence of a state of war. Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals.”
In subsequent years, the American internment policy has been met with harsh criticism. In 1988, Congress awarded restitution payments of $20,000 to each survivor of the 10 camps.
As part of the Civil Liberties Act of 1988, Congress apologized "on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens."
President Bill Clinton awarded the Presidential Medal of Freedom to Korematsu in 1998, and President Barack Obama bestowed the same honor on Hirabayashi in 2012.
During the 1999 ceremony, Clinton said, "In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls--Plessy, Brown, Parks. To that distinguished list today we add the name of Fred Korematsu."
And in 1983, federal courts had also overturned the original convictions of Hirabayashi and Korematsu.
Recent Historical Stories on Constitution Daily
50 interesting facts about Abraham Lincoln’s life
It was 155 years ago today: Abraham Lincoln is elected President
Korematsu: A decision that is still questioned today