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ONE OF THE SUPREME COURT’S MOST INFAMOUS CASES IS AS RELEVANT AS
EVER  
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Jonathan van Harmelen
December 18, 2024
The Nation
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_ Eighty years ago, Korematsu v. United States upheld the
incarceration of Japanese Americans. The racism and hysteria that
fueled that decision are still with us today. _

Fred Korematsu in 1983., (Gary Fong / San Francisco Chronicle via
Getty Images)

 

On December 18, 1944, the Supreme Court issued one of its most
notorious decisions: _Korematsu v. United States
[[link removed]]_. The plaintiff, Fred
Korematsu, a 25-year-old Japanese American man from San Leandro,
California, who had refused orders to move to a concentration camp,
was convicted of violating Order 9066, which authorized the mass
removal of Japanese Americans, and Public Law 503, which sentenced any
Japanese Americans who violated the exclusion order to jail.

Korematsu’s case, along with that of a young Japanese American woman
and former California state employee, Mitsuye Endo, challenged the
fundamental question of whether the government acted within reason
when it imprisoned a whole community based on their ethnic background
and outlawed their presence on the West Coast. The judges ruled 6–3
in _Korematsu_ that the Roosevelt administration was justified in
ordering the removal policy even if the kind of racial classification
that implied should be subject to “strict scrutiny,” a term that
endures in the court’s constitutional doctrine. The court then ruled
unanimously in Endo’s case that the confinement of citizens who were
“concededly loyal” to the United States needed to end.

Ironically, the Endo case had a more immediate impact in addressing
the mass incarceration of American citizens. As Greg Robinson notes in
his article
[[link removed](1944)/] on _Ex
Parte Endo_ for Densho, it was the _Endo_ ruling that led the Army
to lift exclusion and allow Japanese Americans to return to their
homes on the West Coast after three years behind barbed wire. Yet it
is Korematsu and his case that we remember most.

The Korematsu case is now seen as one of the lowest points in the
court’s history, and Korematsu has been immortalized as a victim of
racist American injustice. In _Trump vs. Hawaii_, Chief Justice John
Roberts and other conservative judges specifically disclaimed
Korematsu—while upholding Donald Trump’s Muslim ban.



After eighty years, the ghosts of the incarceration remain with us.
Roberts did not explicitly overrule two other “Japanese
internment” cases—_Hirabayashi _and_ Yasui v. US_—and
they remain citable
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“good law.”

And even though our society has changed dramatically over the past 80
years, in many ways we are not much different from Americans in 1942.
In a presidential race where the winning candidate repeated xenophobic
lies about Haitian Americans, promised to deport millions of
immigrants, and continued to refer to “enemies within,” we need to
study this tragic chapter if we want to live in a society that values
equality and rejects bigotry as a political tool.

The story of Japanese American incarceration has become a sort of
Rorschach test. To liberals, it’s a painful example of racial
intolerance and xenophobia. To conservatives, it’s a story of big
government run amok. Perhaps among the most ridiculous and disturbing
use of this history is Trump’s recent comparison between the
January 6 insurrectionists and incarcerated Japanese Americans
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That nonsensical statement is easy to dismiss. But more profound
corruptions of the past are also taking place, such as the recent
reports that the chief archivist at the National Archives was actively
suppressing information concerning Japanese American incarceration in
an attempt to whitewash the nation’s history
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All Americans should be familiar with the facts. None of the 120,000
Japanese Americans who were incarcerated were found guilty of any acts
of sabotage. They were imprisoned only on the grounds of their race.
In fact, in November 1941, even before Pearl Harbor, a secret report
[[link removed]] commissioned by
President Roosevelt, based partly on information gathered by the
Office of Naval Intelligence and FBI, asserted that the overwhelming
majority of Japanese Americans were loyal to the US. “We do not want
to throw a lot of American citizens into a concentration camp of
course, and especially as the almost unanimous verdict is that in case
of war [Japanese Americans] will be quiet, very quiet.” By February
1942, however, members of Congress and the War Department lobbied
Roosevelt enough to set aside the rights of a whole community.

The incarceration greatly benefited political elites on the West
Coast, who scored political points with anti-Japanese exclusionists
and large farming magnates who saw Japanese American farmers as
competition. In his dissent in _Korematsu v. United States_, Ninth
Circuit Court Judge William Denman slammed the unjust policy: “Along
with him [Korematsu] are 70,000 American citizens men, women and
children who, under similar orders, have been torn from their homes,
farms and places of business to be imprisoned together in large
groups, first in barbed wire stockades called Assembly Centers, then,
after deportation, in distant places under military guard.”

The incarceration is, at its core, a story of how racial prejudice
undermined the principle of equal protection under the Constitution.
Unfortunately, many of the forces that led to incarceration in 1942
are being repeated today.

One of those forces is the media. In the months after Pearl Harbor,
media outlets like the Hearst newspapers or the _Los Angeles
Times_ peddled false stories of Japanese Americans conspiring to
sabotage the American war effort. The media played up fake news about
middle-aged farmers spying for the Japanese government.
The_ Times_ infamously claimed that all farms in the county owned by
Japanese Americans were strategically placed near airports and
military installations to coordinate sabotage—ignoring the fact that
the farms were often built before the airports.

Prominent syndicated columnists like Walter Lippmann and Westbrook
Pegler told their readers that expelling Japanese Americans from their
West Coast homes was both reasonable and necessary. Just a week before
Roosevelt signed Executive Order 9066, Lippman wrote
[[link removed]] that
the Japanese had agents on the Pacific Coast—there were none, in
fact—and that even a lack of sabotage indicated that “the blow is
well organized and that it is held back until it can be struck with
maximum effect.” Days later, Pegler, who applauded Lippmann’s
article, wrote, “The Japanese in California should be under armed
guard to the last man and woman right now and to hell with habeas
corpus until the danger is over.” Both articles were circulated
among members of Congress and the president as a sign that forced
removal was the answer.

Some voices, however, dissented. _The Nation’s_ own Carey
McWilliams righteously defended the rights of Japanese Americans
during the war and released his own book, _Prejudice_, that condemned
the West Coast anti-Japanese movement. _The Nation_’s reaction to
the Supreme Court’s ruling in _Korematsu vs. U_S was similarly
firm: “We fear that these Japanese cases are the thin edge of the
wedge by which racial discrimination makes its first unmistakable
appearance in American constitutional law.”

The newspaper era of the 1940s seems vastly different from our
social-media age, but we have our own fake news merchants today.
As _Slate_ reported
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the run-up to the election, about half of the top-charting podcast
shows on Spotify were hosted by figures aligned with the MAGA movement
like Tucker Carlson and Candace Owens, who frequently spread
conspiracy theories. And leading right-wing media outlets
have cheered on
[[link removed]] Trump’s
racist threats of mass deportations, based in part on hyped-up,
misleading reporting
[[link removed]].

The wartime events also show how political leaders can capitalize on
the fears of their constituents to score political points. Members of
Congress and state officials alike in California demonized Japanese
Americans to boost their careers—then–Attorney General Earl Warren
was elected governor in part by building on fears of Japanese
Americans. When Congress interviewed Warren for his thoughts on the
loyalty of Japanese Americans in February 1942, he responded: “We
believe that when we are dealing with the Caucasian race we have
methods that will test the loyalty of them…but when we deal with the
Japanese we are in an entirely different field and we cannot form any
opinion that we believe to be sound.”

Months later, Warren campaigned as governor on the promise to protect
California from “fifth column activity.” (He would later become
the chief justice of the Supreme Court.)

Los Angeles Mayor Fletcher Bowron, who maintained friendly relations
with Japanese Americans before the war, quickly denounced the
community to maintain power. One attorney representing the Native Sons
of the Golden West even filed suits to strip Japanese Americans of US
citizenship and prevent them from voting in elections
[[link removed]]. In the end, it was
easier for the political elites to pander to their bases than to
defend a vulnerable minority.

We are no more immune to this kind of prejudice now. When I told a
millennial friend several years ago that I write about the
incarceration of Japanese Americans, they responded, “Hasn’t
enough been written about that?” Unfortunately, as the current
election has shown, the answer is no.

At an election rally this fall in Aurora, Colorado, Trump promised to
use the Alien Enemies Act of 1798
[[link removed]],
which was used to incarcerate Japanese noncitizens—many of whom were
elderly and barred from obtaining US citizenship by restrictive
immigration laws—to enforce his deportation scheme. As with
Trump’s invocation of the incarceration as a precedent for his
infamous Muslim ban
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his proposal offers a distorted view of history. But if we are not
vigilant, we could see history repeat itself.

In the years leading up to and following the overturning of his
wartime conviction in 1983, Korematsu rose to prominence as a civil
rights activist and garnered celebrity status as a hero who
courageously fought against incarceration. When Lorraine Bannai, an
attorney on Korematsu’s legal team, asked Korematsu how he felt
being a public figure, he said: “I feel that a wrong has righted,
and that I’m involved. To have this, you know, not happen again, for
educational purposes, I just continue on. And if I can make an
appearance in class in so forth, and let the students know what
happened, so this won’t ever happen to them or others, it’s
worthwhile doing.”

Remembering the lessons of the incarceration is what we should be
doing today, more than ever. That, I think, is what Fred Korematsu
would have wanted.

_JONATHAN VAN HARMELEN is a historian of Japanese Americans. He
received his PhD in history at the University of California, Santa
Cruz, in 2024. He is the co-author, with Greg Robinson, of The
Unknown Great: Stories of Japanese Americans at the Margins of
History.
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_Copyright c 2024 THE NATION. Reprinted with permission. May not be
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* Supreme Court
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* Korematsu v United States
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* Racism
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* citizenship
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* Japanese-Americans
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* Equal protection
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* fear
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