Another Embarrassing Anniversary for the U.S. Supreme Court

On this date in 1944, the Supreme Court of the United States issued another of what scholars have rated the five worst decisions that the Court has ever made.  That decision was Korematsu v. United States, 323 U.S. 214 (1944).  Fred Korematsu, “an American citizen of Japanese descent,” as Justice Black’s majority opinion described him, was convicted of remaining in a part of California that the Commanding General of the Western Command, U.S. Army, had designated as one from which all persons of Japanese ancestry were to be excluded.  The Court of Appeals affirmed the conviction, and the Supreme Court granted certiorari, recognizing “the importance of the constitutional question involved.”

The case was argued on two consecutive days.  The Court issued its ruling just over two months later, affirming the conviction by a 6-3 vote.  Justice Black wrote the majority opinion.  Justice Frankfurter issued a concurring opinion.  Justices Roberts, Murphy, and Jackson each filed dissenting opinions. 

 Justice Black began by noting that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” but not necessarily unconstitutional.  Courts must subject such restrictions to “the most rigid scrutiny.  Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”  But the majority quickly found that although many citizens of Japanese ancestry were loyal to the United States, “there was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.”  And, Congress had authorized the military to take such actions. 

Most importantly, the majority, including Justice Frankfurter, found that the reasoning of the Court’s decision in Hirabayashi v. United States, 320 U.S. 81 (1942), which upheld a conviction for violation of a curfew order that required citizens of Japanese ancestry to remain in their homes from 8 P.M. to 6 A.M., applied equally to Korematsu.  Though exclusion from an area was “a far greater deprivation” than a curfew, “exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage.”  The military authorities perceived “the gravest imminent danger to the public safety,” which was sufficient for the Court to uphold the exclusion order and Korematsu’s conviction under it.  Justice Black concluded the majority opinion by refusing to rely on “the calm perspective of hindsight” in evaluating the case.

The dissenters saw the case very differently.  Justice Jackson accused the majority of “distort[ing] the Constitution to approve all that the military may deem expedient.”  He saw no Congressional authorization, but only the action of a single General.  Justice Jackson also wondered how far the principle of Hiraybashi could be extended, leaving that question hanging.  Justice Murphy labeled the majority opinion as “legalization of racism,” despite Justice Black’s lofty introductory words.  But the majority prevailed.

More recently, Korematsu has been widely viewed as seriously mistaken.  That view is based on more than “calm hindsight.”  It is often a seductive idea to restrict some United States citizens in the purportedly greater national interest.  But that is an idea that must be resisted, as the dissenters in Korematsu urged.