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The Long Overdue Death of Korematsu v. United States

jonathanturley

JapaneseAmericansChildrenPledgingAllegiance1942-2For decades, law professors have discussed the 1944 decision in Korematsu v. United States as one of the most disgraceful and indefensible opinions ever issued by the United States Supreme Court. Yet, the Court has continued to cite Korematsu and has never expressly disavowed its denial of basic constitutional rights to Japanese Americans.  In a virtual aside by the majority in Trump v. Hawaii, Chief Judge John Roberts Jr. puts a well-aimed stake through the heart of the case and finally declares it to be overturned.

The case concerned the infamous Executive Order 9066 signed on February 19, 1942 by Franklin Delano Roosevelt.  It authorized the removal of people of Japanese ancestry to internment camps.  More than 120,000 Japanese Americans would be subject to the camps — some were families of Japanese Americans fighting for the United States in World War II.

Fred Korematsu, 23, fought the order and tried to remain at large. He even had plastic surgery on his eyes to alter his appearance and adopted the name Clyde Sarah. It did not work and he was soon in Court and was convicted of violating military orders issued under Executive Order 9066,. He was given five years probation. On December 18, 1944, the Supreme Court ruled 6-3 to uphold the authority to order the interment of innocent people like Korematsu.

In his dissent at the time, Justice Robert Jackson wrote:

“Korematsu . . . . has been 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.”

In the decision yesterday in Trump v. Hawaii, Roberts responded to one of the arguments by dissenting Justice Sonia Sotomayor by noting:

“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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.’”

With that, Korematsu entered the dustbin of history.  It has taken decades since we, in the words of Jackson, “[fell] into the ugly abyss of racism” in the case.  However, its rejection shows not only our susceptibility to fear and racism but our ability to recognize and correct such failures.  This correction took far far too long, but it is finally here.

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