Supreme Court’s Disingenuous Funeral Ceremony for Korematsu

By Carl Takei

Over Independence Day weekend, I joined hundreds of fellow Japanese-Americans at the Tule Lake Pilgrimage. Held on the site of the Tule Lake Segregation Center, this pilgrimage offers a chance to remember how the U.S. government imprisoned our families without trial during World War II.

President Franklin D. Roosevelt provided the legal authority for this incarceration by signing Executive Order 9066, which directed military officials to “prescribe military areas . . . from which any or all persons may be excluded.” The language of the order was facially neutral, in that it named no particular ethnic groups. However, everyone involved in its drafting and implementation knew it would target people of Japanese ancestry, both U.S.-born citizens and noncitizen immigrants.

In the ensuing weeks and months, Lt. General John L. DeWitt — an avowed racist who famously declared that “a Jap’s a Jap” regardless of citizenship — designated large swaths of Arizona, California, Oregon, and Washington as “military areas” from which Japanese-Americans would be “excluded” by force. As a result, my grandmother Bette — a 23-year-old aspiring fashion designer from a small California town — was forced to interrupt her junior college education to be imprisoned with her parents and siblings at the Tule Lake prison camp. They were assigned to tarpaper barracks to live behind barbed wire under the watch of armed guards. Meanwhile, my grandfather Kuichi — who had actually been drafted into the U.S. Army before Pearl Harbor — was left in an uncomfortable limbo while military authorities decided what to do with this newly enlisted soldier who happened to be of an “enemy alien” race. Eventually, they ordered him to join the fight in Europe.

In the years that followed, a handful of Japanese-Americans pursued legal challenges to the various orders that Lt. General DeWitt issued under EO 9066, including curfews, travel restrictions, and ultimately the roundup and incarceration of Japanese-Americans. The first to be decided by the Supreme Court were Yasui v. United States and Hirabayashi v. United States in 1943, which approved the race-based curfews. The last were its 1944 decisions in Ex Parte Endo, which avoided deciding the constitutional question, and Korematsu v. United States, which approved the final roundup as constitutional. Writing for the majority in Korematsu, Justice Black asserted:

“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire.”

Three justices saw the folly and danger of this blinkered approach. Justice Roberts characterized the case as “a clear violation of Constitutional rights.” Justice Murphy described the racist origins of the orders and wrote bluntly: “I dissent, therefore, from this legalization of racism.” And Justice Jackson wrote a prescient warning about the dangers of “a judicial opinion [that] rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order.” Once racial discrimination has been validated by the highest court, that principle “then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Meanwhile, at least 331 people died while incarcerated at Tule Lake under the authority of EO 9066. Those not cremated were buried in a cemetery inside the camp’s perimeter. It is not possible to visit that cemetery today. After the war, local residents bulldozed the graveyard and used the soil and bones as construction fill. All that remains is a lumpy depression in the ground, next to what is now the county dump.

I read the Supreme Court’s decision in Trump v. Hawaii, the lawsuit challenging the third iteration of Trump’s Muslim ban, on my way to the Tule Lake Pilgrimage. And I could not stop thinking about that graveyard and its desecration.

In Trump, the court upheld the Muslim ban despite overwhelming evidence that it was motivated by anti-Muslim prejudice. Yet the court simultaneously repudiated Korematsu v. United States, writing that the 1944 decision “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.’” But this did not truly lay Korematsu to rest.

The Supreme Court justices who signed the majority opinion may believe their words buried Korematsu in the graveyard of history. But Korematsu was already resting in a shallow grave and nearly completely repudiated. What they actually did was to deliver a eulogy even as they disinterred its bones and infused its spirit into another injustice.

In Trump, Chief Justice Roberts contended it is “wholly inapt” to liken the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race” to the Trump administration’s “facially neutral policy denying certain foreign nationals the privilege of admission.” Yet the mental gymnastics that the Trump court went through to avoid finding religious animus are virtually the same as those the Korematsu court employed to avoid finding racial animus.

As Justice Sotomayor wrote in dissent:

“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.”

Moreover, as legal scholar Eric Muller has written, the narrowness of the court’s repudiation of Korematsu leaves the identical reasoning of Hirabayashi (holding that the race-based curfew was “not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant”) intact and free to be cited by future decisions.

Thus, the Supreme Court’s disingenuous funeral ceremony for Korematsu gives me no comfort as a Japanese-American. Instead of truly putting Korematsu to rest, the Muslim ban decision revived Korematsu under another name. And the re-animated spirits of Korematsu and the other Japanese-American incarceration decisions will continue to roam American jurisprudence until Trump receives its own funeral rites.

Carl Takei is the Senior Staff Attorney with ACLU’s Trone Center for Justice and Equality


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17 thoughts on “Supreme Court’s Disingenuous Funeral Ceremony for Korematsu”

  1. Eric Gelber

    In Trump v. Hawaii, the Supreme Court provided a roadmap for implementing racist public policy while purportedly disavowing Korematsu. What the Court really said was Korematsu “has no place in law under the Constitution [wink, wink].” Elections matter.

  2. Jeff M

    n Trump, the court upheld the Muslim ban despite overwhelming evidence that it was motivated by anti-Muslim prejudice.

    The ONLY overwhelming evidence is that that there are people afflicted with so much Trump hate that they are prone to cognitive dissonance and emotional extremism… incapable of forming any rational assessment of what he says or does.

    The court does not have TDS; hence the calm and rational assessment supporting the President’s constitutional right and responsibility to keep the country safe.

    1. Don Shor

       there are people afflicted with so much Trump hate that they are prone to cognitive dissonance and emotional extremism… incapable of forming any rational assessment of what he says or does.

      The court does not have TDS;

      This repetitive argument that you are making against any criticism of Donald Trump is getting very tiresome. It is insulting and without merit. There was plenty of evidence of Trump’s intent. As I understand it, the court found that the ban stood, in its third iteration, despite that intent. The court did not find that the intent was not there. Perhaps legal experts here can verify my understanding of this.

      I suggest you stick to the actual arguments and topics and stop insulting people.

      1. Jeff M

        This repetitive argument that you are making against any criticism of Donald Trump is getting very tiresome.

        No Don, this repetitive angry wailing of the left that Trump and those that support him are: racist, misogynist, xenophobic, fascist, white supremacist, Nazi’s, homophobic, anti-Muslim, etc., etc., etc., but those that join this cr@p as unworthy of any rational engagement on the issues and topics, and only qualified to have their behavior reflected back into their face over and over again until one day maybe they can get it.

        I have to ask the question… what the h _ ll is wrong with a person that calls the President and his supporters these names and then lacks the self-awareness to accept that this then opens them up for being called on this behavior? The answer is TDS.

        Do you have any criticism of the policies or only of DJT’s motives as an evil disgusting POS?  Because all I see from you and others is the later.  There is no room for respectful dialog in that case.  It is clear that the emotion of hate and disgust have permeated the brains of many and has become a psychological disorder.

        Bottom line… don’t demand respect from others when you are not respectful yourself.

          1. Don Shor

            I suggest you and John Hobbs stop talking to each other on the Vanguard. The rest of us would appreciate it.

        1. Don Shor

          that Trump and those that support him are: racist, misogynist, xenophobic, fascist, white supremacist, Nazi’s, homophobic, anti-Muslim, etc., etc., etc.,

          This article didn’t say any of those things about “those who support him” and focused squarely on the issue which was before the Court: did the president’s animus against Muslims, as evidenced in his many tweets and comments, mean that the policy was discriminatory.
          You made a spectacular straw man out of it.

          I have to ask the question… what the h _ ll is wrong with a person that calls the President and his supporters these names

          This article didn’t do any of those things. And yet you went through your whole litany and spurious “diagnosis” anyway. Hence my comment about it being repetitive and tiresome.

          Do you have any criticism of the policies

          Plenty. It might make an interesting discussion if you could refrain from your usual characterizations.

          It is clear that the emotion of hate and disgust have permeated the brains of many and has become a psychological disorder.

          I suggest you have no qualifications to make this assertion. And, again, it is tiresome, repetitive, and insulting.

        2. Jeff M

          I suggest you and John Hobbs stop talking to each other on the Vanguard. The rest of us would appreciate it.

          I will put some effort into that, although I believe he should be respected for telling everyone how he really feels… because many others with his political orientation try desperately to hide the same but fail.  The TDS-force is strong in this one, but it is eating the brains of many.

          Related to the rest of your points, the article is clearly claiming racism as the basis for the Trump administration policy.  However there is no discussion about the counter arguments to this… that 99.9% of all terrorism these days is from Muslims and the countries listed on the travel ban were known and listed as dangerous to the US under the Obama Administration.  The list was provided to both presidents by our intelligence and national security agencies.  From my perspective Obama ignored his responsibility because of politics… a common problem with that POTUS.

          The court took a reasonable approach to say that things said during a campaign cannot and should not be used to impugn a President’s intent.   Trump was given a warning though that his loose speech could be a problem while in office.  However, there is a constitutional right and responsibility for POTUS to implement this type of policy.  American safety over liberal sensitivity is a balancing act where sometimes American safety is determined to be the more important consideration.  Thankfully SCOTUS got it right.

          The lower courts that got smacked by SCOTUS were all Obama-appointment liberal activists.   There is nothing there.

          1. Don Shor

            the article is clearly claiming racism as the basis for the Trump administration policy.

            Technically, not racism. Anti-Muslim bias. Using Trump’s many utterances and tweets as examples.

            99.9% of all terrorism these days is from Muslims

            Well, certainly not domestically.

            the countries listed on the travel ban were known and listed as dangerous to the US under the Obama Administration.

            In that regard, the list makes little sense. The addition of Venezuela was just peculiar and seems to have had little basis except as a method of getting the program to pass muster with the court. North Korea likewise. The absence of Saudi Arabia from the list is a glaring omission.

            Iran, for the record, is not an exporter of terrorists. They have subsidized state sponsors of terror such as Hezbollah. But Shi’ites aren’t leaving Iran and going places to blow themselves up. There are Shi’a terror groups, but the threat from them is not from their emigration to the U.S. And there are plenty of Iranian nationals who wish to come to the U.S. for very valid reasons. There are hundreds of thousands, almost a million I think, Iranians living in the U.S. and traveling back and forth to visit family, and they are not considered threats. Lots of people of Iranian descent here in Davis thanks to UCD. They and their families are not a security risk. Banning their travel doesn’t make anyone safer.

            In short, the policy was poorly conceived, implemented very badly, is arbitrary and in the case of some countries has no discernible connection to national security. But the key question really was whether the president’s rhetoric, appalling as it was and continues to be on the issue, provided a basis for challenging the policy. The court majority agreed with your position. But that doesn’t mean the other arguments were without merit. And it certainly doesn’t mean they were based on some mental disorder or irrational premises as you like to assert.

      1. Jim Hoch

        In the words of Ray Davies
        Silly boy you got so much to live for
        So much to aim for, so much to try for
        You blow it all with, paranoia
        You’re so insecure you, self-destroyer
        paranoia, they destroy ya
        (Here it goes again) paranoia, they destroy ya

    2. Dave Hart

      The court does not have TDS

      Tabular Data Stream, a computer protocol normally used by database servers

      Transposition driven scheduling, an algorithm for solving puzzles efficiently in parallel computer systems

      Thermal desorption spectroscopy (TDS), to observe molecules desorbed from a surface

      Tornado debris signature on weather radar

      Total dissolved solids in water

      Transderivational search or fuzzy search in psychology

      Oh, yes, the last one…

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