Korematsu v. United States

Litigants=Korematsu v. United States
ArgueDateA=October 11
DecideDate=December 18
FullName=Fred Korematsu v. United States
Citation=65 S. Ct. 193; 89 L. Ed. 194; 1944 U.S. LEXIS 1341
Prior=Certiorari to the Circuit Court of Appeals for the Ninth Circuit
Holding=The exclusion order leading to Japanese American Internment was constitutional.
JoinMajority=Stone, Reed, Douglas, Rutledge, Frankfurter
Dissent=Roberts, Murphy, Jackson
LawsApplied=Executive Order 9066

"Korematsu v. United States", 323 U.S. 214 (1944) [ussc|323|214|Full text of the opinion courtesy of Findlaw.com.] , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which required Japanese-Americans in the western United States to be excluded from a described West Coast military area.

In a 6-3 decision, the Court sided with the government,cite news |first=Warren |last=Richey |authorlink= |coauthors= |title=Key Guantánamo cases hit Supreme Court |url=http://www.csmonitor.com/2007/1205/p01s02-usju.html?page=2 |work=The Christian Science Monitor |publisher= |date=2007-12-05 |accessdate= ] ruling that the exclusion order was constitutional. The opinion, written by Supreme Court justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu's individual rights, and the rights of Americans of Japanese descent. (The Court limited its decision to the validity of the exclusion orders, adding, "The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.")

The decision in "Korematsu v. United States" has been very controversial. Indeed, Korematsu's conviction for evading internment was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of "coram nobis." In a ruling by Judge Marilyn Hall Patel, the Federal District Court for the Northern District of California granted the writ (that is, it voided Korematsu's original conviction) because in Korematsu's original case, the government had knowingly submitted false information to the Supreme Court that had a material impact on the Supreme Court's decision.

The "Korematsu" decision has not been explicitly overturned. Indeed, the "Korematsu" ruling is significant both for being the first instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a tiny handful of cases in which the Court held that the government met that standard.


On May 19, 1942, during World War II, western Japanese Americans were forced to move into relocation camps by Civilian Restrictive Order No. 1, 8 Fed. Reg. 982. This order, and other similar orders, were based upon Executive Order 9066 (February 19, 1942), which was specifically a result of the Japanese bombing of Pearl Harbor and the ensuing anti-Japanese sentiment in America. This order and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from areas that were deemed critical to national defense and potentially vulnerable to espionage.

A number of significant legal decisions arose out of Japanese American internment, relating to the powers of the government to detain citizens in wartime. Among the cases which reached the Supreme Court were "Yasui v. United States" (1943), "Hirabayashi v. United States" (1943), "Ex parte Endo" (1944), as well as "Korematsu". In "Yasui" and "Hirabayashi", the court upheld the constitutionality of curfews based on Japanese ancestry. In "Endo", the court accepted a petition for a writ of habeas corpus and ruled that the WRA had no authority to subject a citizen whose loyalty was acknowledged to its procedures.

Fred Korematsu was a U.S.-born Japanese American man who decided to stay in San Leandro, California and knowingly violate Civilian Exclusion Order No. 34 of the U.S. Army, because he refused to be separated from his Italian-American girlfriend. He was arrested and convicted. No question was raised as to Korematsu's loyalty to the United States. The Circuit Court of Appeals affirmed the conviction, and the Supreme Court granted "certiorari".


The majority opinion, written by Justice Hugo Black, found the case largely indistinguishable from the previous year's "Hirabayashi v. United States" decision, and rested largely on the same principle: deference to Congress and the military authorities, particularly in light of the uncertainty following Pearl Harbor. Justice Black further denied that the case had anything to do with racial prejudice:

Murphy's dissent

Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism," and comparing the rationale for the Japanese exclusion to that supporting "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy" — that is the Racial policy of Nazi Germany. He also compared the treatment of Japanese Americans, on the one hand, with persons of German and Italian ancestry, on the other, as evidence that race, rather than the emergency alone, led to the exclusion order which Korematsu was convicted of violating. In his passionate closing paragraph, he wrote:Justice Murphy's two uses of the term "racism" in this opinion, along with two additional uses in his concurrence in "Steele v. Louisville & Nashville R. Co.", decided the same day, are not the first appearances of the word "racism" in a United States Supreme Court opinion. The first appearance was in Justice Murphy's concurrence in "Ex parte Endo", ussc|323|283|1944 [ [http://www.law.ucla.edu/kang/racerightsreparation/Resources/Legal_Materials/Ex_parte_Mitsuye_Endo.pdf jerrykang.net - jerrykang.net ] ] . The term was also used in other cases, such as "Duncan v. Kahanamoku", ussc|327|304|1946 and "Oyama v. California", ussc|332|633|1948. It then disappeared from the court's lexicon for 18 years — it reappeared in "Brown v. Louisiana", ussc|383|131|1966. It did not appear in "Loving v. Virginia", ussc|388|1|1967 [ cite journal | last = Lopez | first = Ian F. Haney | authorlink = | coauthors = | year = 2007 | month = | title = ‘A nation of minorities’: race, ethnicity, and reactionary colorblindness | journal = Stanford Law Review | volume = 59 | issue = 4 | pages = 985–1064 | id = | url = http://lawreview.stanford.edu/content/vol59/issue4/lopez.pdf | accessdate = | quote = ] , although that case did talk about racial discrimination and interracial marriages.

Jackson's dissent

By contrast, Justice Robert Jackson's dissent argued that "defense measures will not, and often should not, be held within the limits that bind civil authority in peace," and that it would perhaps be unreasonable to hold the military, who issued the exclusion order, to the same standards of constitutionality that apply to the rest of the government. "In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal." He acknowledged the Court's powerlessness in that regard, writing that "courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint."

He nonetheless dissented, writing that, even if the courts should not be put in the position of second-guessing or interfering with the orders of military commanders, that does not mean that they should have to ratify or enforce those orders if they are unconstitutional. Indeed, he warns that the precedent of "Korematsu" might last well beyond the war and the internment:

ubsequent history

Former Supreme Court Justice Tom C. Clark, who represented the U.S. Department of Justice in the "relocation," writes in the Epilogue to the book "Executive Order 9066: The Internment of 110,000 Japanese Americans" (written by Maisie and Richard Conrat):

As earlier stated, Korematsu challenged the earlier decision through a writ of coram nobis in the early 1980s. In 1984, in "Korematsu v. United States", 584 F. Supp. 1406 (N.D. Cal. 1984), the U.S. District Court for the Northern District of California granted his writ and overturned Korematsu's original conviction. In that decision, Judge Marilyn Hall Patel held that "there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court" — information that was critical to the Supreme Court's original decision in 1944. In particular, the government suppressed information that their stated military justification for the exclusion and internment of Japanese Americans was, in the words of Department of Justice officials writing during the war, based on "willful historical inaccuracies and intentional falsehoods." However, the District Court emphasized that in issuing this decision, it only had the power to correct errors of fact, not errors of law. The essential holding of the 1944 "Korematsu" decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched. Judge Patel concluded:

The 2001 documentary "Of Civil Wrongs and Rights" tells the story of the 1983 court case and of Korematsu's life before and after that decision. Peter Irons' book "Justice at War: The Story of the Japanese American Internment Cases" describes the government deceptions in the original "Korematsu" case.

The U.S. Government officially apologized for the internment in the 1980s and paid reparations totaling $1.2 billion, as well as an additional $400 million in benefits signed into law by George H. W. Bush in 1992. In January of 1998, President Bill Clinton named Fred Korematsu a recipient of the Presidential Medal of Freedom.

In 2004, Korematsu filed an amicus curiae brief in the case of "Rasul v. Bush", in which Guantanamo detainees challenged their detention as enemy combatants by the Bush administration. In the brief, Korematsu argued, "The extreme nature of the government’s position in these cases is reminiscent of its positions in past episodes, in which the United States too quickly sacrificed civil liberties in the rush to accommodate overbroad claims of military necessity."

In March 2005, Korematsu died at the age of 86. It has been revealed that the United States government suppressed the fact that its own intelligence had established that the interned Japanese Americans were not a security risk, even as the matter was litigated before the Supreme Court. [cite news |first=Richard |last=Goldstein |authorlink= |coauthors= |title=Fred Korematsu, 86, Dies; Lost Key Suit on Internment |url=http://www.nytimes.com/2005/04/01/national/01korematsu.html |work=New York Times |publisher= |date=2005-04-01 |accessdate= ]

ee also

*List of United States Supreme Court cases, volume 323
*United States Executive Order 9066
*Japanese American internment
*"Reference re Persons of Japanese Race" [1946] S.C.R. 248 — similar Canadian decision
*"Liversidge v. Anderson", UK case of an internee under Defence Regulation 18B
*"Rasul v. Bush" — 2004 Supreme Court case concerning the Guantanamo Bay prisoners


Further reading

*cite news |first=Joan |last=Biskupic |authorlink= |coauthors= |title=Prisoners test legal limits of war on terror using Korematsu precedent |url=http://www.usatoday.com/news/washington/2004-04-18-scotus-terror_x.htm |work=USA Today |publisher= |date=2004-04-18 |accessdate=
*cite book |chapter=Civil Liberties Versus National Security |title=The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom |last=Levy |first=Robert A. |authorlink=Robert A. Levy |coauthors=Mellor, William H. |year=2008 |publisher=Sentinel |location=New York |isbn=9781595230508 |pages=127–142
* cite journal | last = Rountree | first = Clarke | authorlink = | coauthors = | year = 2001 | month = | title = Instantiating the law and its dissents in "Korematsu v. United States": A dramatistic analysis of judicial discourse | journal = The Quarterly Journal of Speech | volume = 87 | issue = 1 | pages = 1–24 | issn = 0033-5630 | url = | accessdate = | quote =
* cite journal | last = Serrano | first = Susan Kiyomi | authorlink = | coauthors = Minami, Dale | year = 2003 | month = | title = "Korematsu v. United States": A ‘Constant Caution’ in a Time of Crisis | journal = Asian Law Journal | volume = 10 | issue = | pages = 37 | issn = 1078-439X | url = | accessdate = | quote =
*cite book |title=I dissent: Great Opposing Opinions in Landmark Supreme Court Cases |last=Tushnet |first=Mark |authorlink= |coauthors= |year=2008 |publisher=Beacon Press |location=Boston |isbn=9780807000366 |pages=113–126

External links

*caselaw source
case="Korematsu v. United States", 323 U.S. 214 (1944)

* [http://www.pbs.org/pov/pov2001/ofcivilwrongsandrights/ "Of Civil Wrongs and Rights", official site] (2001 "P.O.V." documentary on the 1983 "coram nobis" case)

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