It is appalling to see the shameful confinement of Japanese-Americans in concentration camps during World War II bandied about as some kind of “precedent” for how the United States might respond to the threat of terrorism. And it is distressing to hear Korematsu v. United States, the notorious decision upholding the internment policy, described at “good law,” or “technically still on the books.” That suggestion is sometimes made even by people who see the Korematsu decision, correctly, as a disgrace. Legitimating Korematsu is not as bad as legitimating the internment, but it is a mistake, and a dangerous one. Korematsu is not “good law”—“technically” or otherwise—and it is important to understand why.
Fred Korematsu, born and raised in Oakland, California, was the son of Japanese immigrants. In May 1942 the Army ordered “All Persons of Japanese Ancestry” in the San Francisco Bay Area to report to an “Assembly Center,” for “evacuation.” Korematsu was convicted later that year of failing to show up. The ACLU took Korematsu’s case to the Supreme Court, which upheld the conviction in a split decision. The majority opinion, by Justice Black, reasoned that laws curtailing the rights of a particular racial group were “immediately suspect” and subject to “rigid scrutiny,” but could be upheld if strictly required by “pressing public necessity.” And Justice Black was unwilling to second-guess the conclusion of military authorities that the order Korematsu had violated was required by the national emergency of World War II.
Three Justices dissented in Korematsu. Justice Roberts called the internment order “a clear violation of Constitutional rights.” Justice Murphy said it fell “into the ugly abyss of racism.” Justice Jackson warned that the order had “no place in law under the Constitution.”
In the entire history of American law, few judicial dissents have ever been more fully vindicated than those in Korematsu. It turned out that the Army lacked any military justification for the internment program, and that lawyers at the Department of Justice were complicit in keeping that information from the Supreme Court. In the early 1980s a bipartisan commission, created by statute and appointed by President Carter, concluded that the internment was unjustified and unconstitutional, the result of “race prejudice, war hysteria, and a failure of political leadership.” The Korematsu decision, the commission declared, had been “overruled in the court of history.”
The Civil Liberties Act of 1988, passed with bipartisan support and signed into law by President Reagan, endorsed the commission’s findings, called the internment a “grave injustice,” found that it had caused “incalculable” human suffering, and declared it a violation of “basic civil liberties and constitutional rights.”
Meanwhile, in 1984, federal District Judge Marilyn Patel voided Fred Korematsu’s conviction. The Supreme Court’s decision in Korematsu’s case, Judge Patel noted, now stood largely as an admonition:
[I]t stands as a constant caution that in times of war or declared military necessity our institutions 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 1998, President Clinton awarded Fred Korematsu the Presidential Medal of Freedom, noting that “[i]n In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks. To that distinguished list, today we add the name of Fred Korematsu.” And in 2011 Neal Katyal, the Acting Solicitor General of the United States, acknowledged that the Department of Justice had misled the Supreme Court in Korematsu by withholding key facts that undermined the arguments for the internment. The case stands today, he said, “as a reminder of the mistakes of that era.”
Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia ranked Korematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Green wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.”
The deprivations and humiliations suffered by Japanese-Americans during World War II left lasting wounds. Four decades later, the congressionally chartered Commission on Wartime Relocation and Internment of Civilians found that interment remained a pivotal, “mournful reference point” for a generation of Japanese-Americans, “the central experience which has shaped the way they see themselves, how they see America, and how they have raised their children.”
The internees were not the only ones scarred. Earl Warren, as Attorney General of California in 1942, spoke in favor of the internment; the experience haunted him for the rest of his days. He wrote in his memoirs that the removal order and his support for it were “not in keeping with our American concept of freedom and the rights of citizens.” He regretted having acted “impulsively,” in response to “fear, get-tough military psychology, propaganda, and racial antagonism.” Interviewed for an oral history project toward the end of his life, Warren was asked about the internment. He spoke of the faces of children being separated from their parents. Tears rolled down his face, and the interview had to be temporarily halted. Anyone who has visited Manzanar, or any of the other internment camps, will understand Warren’s tears.
No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.
David Alan Sklansky is Stanley Morrison Professor of Law at Stanford Law School.