Argued Oct. 11, 12, 1944. Decided Dec. 18, 1944.

You think Supreme Court rulings are always correct? You think that there are not times when we need to throw these old horses out and get a new view? Perhaps a view that has something to do with the Constitution? Antonin Scalia, Clarence Thomas and Chief Justice William H. Rehnquist are the only three on the bench now who I think have ever even read the Constitution.

Korematsu related to the constitutionality of an exclusion order. Specifically, whether it was constitutional to exclude Mr. Korematsu from his home in California simply because he was Japanese American during WWII. As the Court framed the issue, it was constitutional to exclude Mr. Korematsu from his home. The Court denied that it was reaching the question of whether internment was constitutional. However, the bottom line was that the internment itself passed constitutional muster, since Mr. Korematsu was not allowed to be anywhere on Earth except within a Relocation Center. (See Clinton's intern apology.)

In upholding Korematsu's conviction, the Court relied heavily on the "military expediency" doctrine it had enunciated in a previous case (Hirabayashi), and noted that, "We are not unmindful of the hardships imposed by the exclusion order upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier."

Now, what about the dissenters? Justice Roberts stated that, "The indisputable facts exhibit a clear violation of constitutional rights. This is a case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States."

Justice Murphy, also in dissent, noted that the "exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism."

Justice Jackson noted that, by ratifying the exclusion order, "the Court has for all time validated the principle of racial discrimination in criminal procedure and of transplanting American citizens."

Roberts, Murphy and Jackson were only three of nine justices; their dissents did not have any force of law.

What got me interested in this case was the recent comment in Justice Antonin Scalia’s dissent on Stenberg v. Carhart (the partial-birth abortion case) where he compared this decision by the Court to Korematsu and Dred Scott. A very apt comparison, I’d say.

According to the Supreme Court decision regarding my race, being an American citizen was not enough. They say you have to look like one otherwise they say you can't tell a difference between a loyal and a disloyal American. I thought that this decision was wrong,and I still feel that way. As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or a hearing. That is if they look like the enemy of our country."
--Fred Korematsu, 1983
In 1981, using the Freedom of Information Act, UC San Diego political science professor Peter Irons and researcher Aiko Yoshinaga-Herzig unearthed documents proving no credible threat from disloyal Japanese Americans after the attack on Pearl Harbor, and furthermore, that that government prosecutors a) possessed evidence in Korematsu's trial indicating that Japanese Americans were generally loyal to the United States yet did not disclose this evidence, and b) altered evidence that suggested that internment of a racial group was not justified by military necessity. Irons contacted Fred Korematsu, and a new team of lawyers headed by Dale Minami, Ed Chen, and Eric Yamamoto were assembled.

On Jan. 19, 1983, the attorneys filed a writ of coram nobis--the legal term for "fundamental error" committed before the court--in San Francisco federal court. Korematsu's legal team argued that the government committed fraud in prosecuting Korematsu in 1942 because there was no military necessity to place Japanese Americans in internment camps, and this evidence was intentionally altered and suppressed by the Justice Department in the original case to justify convictions. (The Justice Department allowed the Supreme Court to rely on information in the "Final Report, Japanese Evacuation from the West Coast" (1942), prepared by General DeWitt, in deciding the case, although it had reliable evidence from the FCC, Department of the Navy, and Justice that contradicted DeWitt ). Though the petition itself was short, the evidence that Irons had discovered was attached as exhibits.

After lengthy delays, the Justice Department did not respond to the merits of the petition, and instead offered a pardon. Koretmatsu said, "Pardon us? We should be pardoning the government." Korematsu refused.

Judge Marilyn Hall Patel asked the government to either oppose or accept the petition. Internally, the justice department could not come to a decision, and refused to do either.

On November 10, 1983, Judge Patel ruled from the bench: she granted the motion to vacate conviction and overturn indictment of Fred T. Korematsu (more than 40 years after his arrest). The government did not appeal the decision.

In her written decision, Patel wrote:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our instituions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.
In her opinion, Patel attached as Appendices the Justice department memoranda from 1944 which note that erroneous information is being provided to the Court. So Patel's ruling damaged the Koretmatsu decision, which legal scholars generally see as an anachronism of racial hysteria anyway. The original decision is discussed in law schools across America as a landmark case (can you qualify due process and equal protection in wartime circumstances?). In 1988, Congress formally apologized and offered reparations to the families of internees, in the 1988 Civil Liberties Act. In 1998, President Clinton awarded Fred Korematsu the Presidential Medal of Freedom.

Happy ending? Not quite. Not yet.

Patel stated in her ruling that this decision corrects errors of fact, not errors of law. Neither her ruling nor Congress' apology could address the constitutionality of internment. Only the Supreme Court can decide constitutionality of its own decisions.

The Supreme Court decision in Korematsu still stands as legal precedent.

(As sekicho reminded me, there has not been another internment of an entire racial group since then, so the court has not had an opportunity to overturn their Korematsu decision)

Eljera,Bert. "Once a Fugitive, Now a Hero." AsianWeek. January 15 - 21, 1998. <http://www.asianweek.com/011598/coverstory.html> (17 October 2001)
Fournier, Eric Paul. “Of Civil Wrongs & Rights: The Fred Korematsu Story.” Film Transcript. USA, 1999. <http://www.pbs.org/pov/pressroom/2001materials/4_CWandR/OfCivilWrongsandRightsTranscript.doc> (17 October 2001)
Leitich, Greg. "Japanese American Legal History: Internment/Relocation." <http://www.cynthialeitichsmith.com/niseiww2.htm> (17 October 2001)
Mineta, Norman Y. "Justice Delayed 43 Years"," insertions to the Congressional Record, Vol. 131 No. 15; Proceedings of February 18, 1985, Issue No. 14; and February 19, 1985, Issue No. 15.
Mori, Aisha. "An Old Man with Guts," Los Angeles New Times, <http://www.newtimesla.com/issues/1999-10-21/faultlines.html> (17 October 2001)
Nakao, Annie. "What if you don't 'look American'?" San Francisco Chronicle. February 20, 2003.
"Court Reverses Korematsu Conviction - Korematsu v. U.S.," 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. Apr 19, 1984). <http://biotech.law.lsu.edu/cases/pp/korematsu_II.htm> (26 Janaury 2004)

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