For the first time, a U.S. Supreme Court decision has denounced the infamous 1944 ruling that supported the constitutionality of Japanese-American incarceration during World War II, calling that ruling “morally repugnant” and “gravely wrong.”
The court’s declaration came Tuesday in a decision upholding President Donald Trump’s travel ban on people from several Muslim-majority countries. The president had once likened his ban to President Franklin Roosevelt’s discriminatory policies during World War II.
But Chief Justice John Roberts, who wrote for the majority, brought up Korematsu v. United States to differentiate it from the ruling in favor of Trump’s travel ban.
“Korematsu has nothing to do with this case,” Roberts wrote, referencing the lawsuit filed by Japanese-American Fred Korematsu, who was arrested for refusing to report to the camps in 1942.
“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” Roberts stated. “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.’”
Legal experts may argue whether that constitutes an official overturning of the earlier decision, but for all practical and symbolic purposes, Roberts’ words mean the Korematsu precedent is gone.
Attorney Dale Minami, who helped overturn Fred Korematsu’s conviction for violating the federal order in 1983, described the court’s declaration as long overdue, though “bittersweet.”
“I think Fred would be happy and sad. He’d be happy that the Supreme Court finally did what they should have done in the first place,” Minami said. “But at the same time, I think that Fred’s vision of civil rights extended beyond his own case.” (Fred Korematsu died in 2005 at the age of 86.)
Minami accused the Supreme Court of having made its decision on Trump’s travel ban without adequate evidence. The same mistake led to the court’s ruling in favor of prison camps seven decades ago, he said.
In 2011, the U.S. Solicitor General’s Office admitted that at the time of the lawsuits filed by Korematsu and fellow Japanese-American Gordon Hirabayashi, it had evidence supporting the argument that the majority of Japanese-Americans did not pose a potential security threat. This evidence was deliberately not submitted to the court, the acting solicitor general said.
I think that Fred’s vision of civil rights extended beyond his own case.
Dale Minami, the lawyer who helped overturn Fred Korematsu’s conviction in 1983
In the case of Trump’s travel ban, information was also deliberately withheld from consideration in the lower courts because it was deemed classified.
“It just feeds into this whole sense that now all three branches of government are leaning so far right,” Minami said.
John Yang, president and executive director of Asian Americans Advancing Justice, also expressed concern that the justices in the current case had “blindly deferred to the judgment of the executive branch.”
“It’s almost ironic or a slap in the face that the Korematsu case was overturned this way,” he said.
Dissenting justices in Trump v. Hawaii didn’t miss this point. Justice Sonia Sotomayor, whose dissent was joined by Justice Ruth Bader Ginsburg, expressed concern that Trump’s policy “masquerades behind a facade of national-security concerns.”
“In Korematsu, the Court gave ‘a pass [to] an odious, gravely injurious racial classification’ authorized by an executive order,” Sotomayor wrote. “As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion.”
Attorney Don Tamaki ― who represents the adult children of Korematsu, Hirabayashi, and Minoru Yasui, who also filed a lawsuit against the federal government’s targeting of Japanese-Americans ― took a similar view.
“[Sotomayor’s] point here is that in 1944, the court just surrendered,” Tamaki told HuffPost. “They said if the military government tells us that Japanese-American citizens are dangerous, then we believe the government. It never said, ‘Where’s the proof?’”
Tamaki warned that when the Supreme Court is willing to look the other way and not demand the full facts, there’s an overwhelming temptation to manipulate the evidence.
It’s almost ironic or a slap in the face that the Korematsu case was overturned this way.
John Yang, president of Asian Americans Advancing Justice
The adult children of Korematsu, Hirabayashi and Yasui all spoke out against the Supreme Court’s decision on Tuesday.
“The travel ban is unjust and singles out individuals due to the religion they practice, similar to Executive Order 9066 that unconstitutionally imprisoned my father due to his Japanese ancestry,” Karen Korematsu, Fred Korematsu’s daughter, said in a statement obtained by HuffPost.
Jay Hirabayashi, son of Gordon Hirabayashi, echoed that disappointment: “The Supreme Court’s decision today reaffirms that despite 75 years, xenophobia still reigns true in our country.”
Holly Yasui, daughter of Minoru Yasui, called the court’s decision a repeat of history.
“Again, our Court has allowed executive power to go unchecked even though the Muslim travel ban and other immigration policies have clear antecedents of religious and racial animus, as was the case in 1942,” she said. “We need to continue to fight for justice. We must never give up!”