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1942 instructions to people of Japanese ancestry in San Francisco, California.
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Instructions posted in 1942 in San Francisco.
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The US Supreme Court finally overruled the case that justified Japanese internment

Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

After more than 73 years, the US Supreme Court finally overruled Korematsu v. US, the infamous 1944 decision upholding the internment of Japanese-Americans during World War II.

The roundup, which mostly included US citizens of Japanese descent, was based on a presidential executive order that cited national security concerns.

Somewhat strangely, this decades-delayed acknowledgment is embedded today (June 26) in the majority opinion in Trump v. Hawaii (pdf), which actually upholds Donald Trump’s travel ban on six predominantly-Muslim nations and a limited category of Venezuelans. The travel ban, challenged as unconstitutional for religious animus, is being allowed to stand for national-security reasons—just as the wartime order was approved by the court.

Writing for the 5-4 majority, Chief Justice John Roberts notes that Korematsu “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.” Yet he goes on to provide an administrative rationale for Trump’s current exclusion of citizens of countries that are mostly Muslim, finding a “rational basis” and no unconstitutional motivation for the Trump order issued in September 2017 and then challenged by the state of Hawaii.

Perhaps the court of history will prove Roberts wrong in this latest case. Some of his colleagues think it already has. In her dissent, Sonia Sotomayor—joined by Ruth Bader Ginsburg—notes that even in 1944, some justices recognized that national security was being used as an excuse to target Americans citizens and that this corroded notions of fairness embedded in the US Constitution. Sotomayor writes:

Today, the Court takes the important step of finally overruling Korematsu…This formal repudiation of a shameful precedent is laud­able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi­natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.

Justifying the roundup

In February 1942, shortly after the US entered World War II, president Franklin Roosevelt issued Executive Order 9066. It authorized the secretary of war and the armed forces to remove people of Japanese ancestry from “military areas” and surrounding communities. Within 14 weeks, 120,000 people—two-thirds of them American citizens—were relocated to “detention camps” on 26 sites in seven western states.

Fred Korematsu didn’t comply with the presidential order. He took drastic measures, going as far as getting plastic surgery to reshape his eyes and claiming that he was of Spanish and Hawaiian descent. Korematsu, whose parents did follow the order, went by the name Clyde Sarah, and for a while that worked. In May 1942, he was tracked down by the FBI and arrested.

The American Civil Liberties Union took Korematsu’s case to challenge the constitutionality of Roosevelt’s order. He was tried in federal court in San Francisco, convicted of violating military orders, sentenced to five years on probation, and sent to an “Assembly Center.” Korematsu appealed and lost. He then petitioned the Supreme Court, which granted a review. On Dec. 18, 1944,  in a 6-3 decision, the court deemed detention a “military necessity” not based on race.

Dissenters on the high court vehemently disagreed. Justice Owen Roberts wrote that Korematsu was 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 towards the United States.” Owens didn’t think much constitutional analysis was required, given the gravity of the government’s offense, adding, “I need hardly labor the conclusion that Constitutional rights have been violated.”

Justice Frank Murphy called the majority’s decision a “legalization of racism.” He wrote that “racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” Murphy also pointed out that all Americans “are kin in some way by blood or culture to a foreign land” yet are part of the “new and distinct civilization” and must “be treated at all times as the heirs of the American experiment.”

The dissent of Robert Jackson—cited today by the majority—laid out the issue neatly. “Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country.” Korematsu’s offense against the US government then “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.” Jackson wrote that “his crime” was not anything he did, said, or thought but that ”he was born of different racial stock.” The justice concluded, “Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.”

Hiding behind administrative processes

On the travel ban, both the majority and dissenting justices recalled Korematsu regretfully. Yet, despite the majority citing Jackson’s dissent, disconcertingly similar notions of national security are now being used to justify what many consider Trump’s bias against Muslims.

Sotomayor’s dissent argues that Trump hasn’t even really tried to hide his religious animus. For the majority to conclude otherwise it had to ignore years of statements and tweets by the president, during his campaign and after he took office, which show that he isn’t neutral about Islam and seeks to target people who practice the faith, she says.

Though Trump claims to be targeting terrorism, Sotomayor isn’t buying it. Unlike her five colleagues in the majority, who refer to the president’s administrative process—a 12-page discussion of immigration, documentation, and consular processing accompanying the Trump order—she believes his bias is in plain sight:

 [A] reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country.

Sotomayor points out that there are many awkward similarities between Trump’s actions and Roosevelt’s. Trump even cited Rooselvelt to justify a proposed ban when he was still on the campaign trail, the justice notes. “In Korematsu, the Court gave a pass [to] an odious, gravely injurious racial classification authorized by an executive order,” she writes. “As here, the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweep­ing proportion…rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States.”

We can only hope that there won’t be too many occasions in the next 73 years to ruefully cite Sotomayor’s dissent. If history is any indication, mistakes will be made—and sometimes corrected only when it’s too late.

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