Court should take up a new opportunity to repudiate Korematsu

In this commentary, Peter Irons says the Supreme Court should use the occasion of a new petition it may not even accept to make a final statement about the controversial Korematsu case from World War II.

Gravestone_fred_korematsuThe time has come—and is long overdue—for the Supreme Court to provide a proper burial of its discredited but still dangerous decisions upholding the wartime internment of more than 110,000 Americans of Japanese ancestry in what President Franklin D. Roosevelt correctly labeled as “concentration camps.”

Ruling in April 1943, the Court affirmed the criminal convictions of Gordon Hirabayashi and Minoru Yasui for violating military curfew orders that were imposed on “all persons of Japanese ancestry.”  In December 1944, the Court upheld the conviction of Fred Korematsu for defying an “exclusion” order that would have forced him into a “relocation center” hastily constructed in the Utah desert.

Both curfew and exclusion were authorized by an executive order that Roosevelt signed on February 19, 1942.  He did so in response to claims by War Department officials that Japanese Americans living along the West Coast posed dangers of espionage and sabotage to assist their “racial brothers” in a threatened mainland invasion or air and naval attacks on key defense facilities from Seattle to San Diego.

The case for overruling or at least formally repudiating both Korematsu (and the equally flawed Hirabayashi and Yasui decisions) is compelling and hardly new.  In fact, the ink was barely dry on the Korematsu opinion when the noted Yale law professor, Eugene V. Rostow, published an article in the Yale Law Journal entitled “The Japanese American Cases – A Disaster.”  Rostow eviscerated the Court’s opinions as based upon “dangerous racial myths” and abject deference to unsupported claims of military necessity.  He urged in 1945 that “the basic issues should be presented to the Supreme Court again, in an effort to obtain a reversal of there war-time cases.”

We now know—not from hindsight but from official reports at the time—that both the fears of Japanese mainland attacks and of treasonous acts by Japanese Americans were unfounded.  We know as well that the Solicitor General who defended the convictions of Hirabayashi, Yasui, and Korematsu before the Supreme Court, Charles Fahy, disregarded warnings by Justice Department lawyers that the Army’s defense of internment as required by “military necessity” was riddled with “lies” and “deliberate falsehoods.”

Documents from Justice and War Department files, unearthed by researchers in the early 1980s, included not only these warnings to Fahy but evidence that officials in both departments had altered the Army’s report on the internment to conceal the racist motivations that prompted the mass imprisonment of Japanese Americans.  Nonetheless, Fahy assured the Court in his Korematsu argument that he stood behind “every line, every word, and every syllable” of this report.

Armed with these incriminating records, teams of young lawyers (most of them children of internment victims) filed petitions in 1983 to vacate the convictions of the wartime defendants, as the product of serious government misconduct before the Supreme Court.  Federal judges wiped out all three convictions.

In her opinion granting Fred Korematsu’s petition, Judge Marilyn Patel found “substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the [Supreme Court].”  In a posthumous rebuke to Solicitor General Fahy, she added that “[t]he judicial process is seriously impaired when the government’s law enforcement officers violate their ethical obligations to the Court.”

Similarly, Circuit Judge Mary Schroeder, affirming the district judge’s vacation of Gordon Hirabayashi’s conviction, wrote in 1987 that “the reasoning of the Supreme Court would probably have been materially and profoundly affected if the Justice Department had advised it of the suppression of evidence” of the racist motivations and false claims in the Army report that Fahy defended before the Court.

As the losing party in the reopened internment cases, the government could have appealed these rulings to the Supreme Court.  But, for reasons that were likely more political than legal, the Solicitor General at the time, Charles Fried, declined to seek their review.  The anomalous result was that the internment decisions, having been erased as the product of the government’s “lies” to the Supreme Court, remained as unreversed precedent, “like a loaded weapon, ready for the hand of any authority that can bring a plausible claim of an urgent need,” as Justice Robert Jackson warned in his prescient Korematsu dissent in 1944.

The question in 2014 is not whether the internment and the Court’s decisions upholding the military orders that placed Japanese Americans behind barbed wire in desolate camps were “wrong,” as Justice Antonin Scalia stated recently in remarks at the University of Hawaii’s law school.  Almost everyone agrees with Scalia, including all his current colleagues on the Court.

Rather, the question is whether the justices should put their money where their mouths are, so to speak, by finally and formally burying the internment decisions, by overruling or repudiating them as still-valid precedent.

Until now, the problem with taking one of these steps is that the Court has not faced a case that raises the issue of congressional and executive authorization for the indefinite detention of American citizens without trial in civil courts, as were the Japanese Americans.  Such a case, however, is currently pending before the Court, through a petition for certiorari on behalf of journalists and political activists who have challenged provisions of the National Defense Authorization Act (NDAA) that allow the arrest and detention of persons accused of providing “substantial support” (an imprecise and undefined term) to terrorist groups.

Led by the Pulitzer prize-winning journalist Chris Hedges, who has reported extensively on groups the U.S. government considers terrorist (including being “embedded” with armed units of such groups), the plaintiffs in Hedges v. Obama sued to block any enforcement of the NDAA detention provisions and have them declared unconstitutional.  They won an initial victory when a federal district judge in New York, Katherine Forrest, granted their request for a permanent injunction against enforcement of the challenged provisions.  In her lengthy and detailed opinion, based upon “credible” testimony from Hedges and fellow plaintiffs that they feared possible arrest and detention for their activities, Judge Forrest cited the Supreme Court’s 1944 decision in Korematsu as an “embarrassment” and totally lacking in precedential value.

The government, predictably, appealed Judge Forrest’s ruling to the U.S. Court of Appeals for the Second Circuit.  A three-judge panel vacated her injunction and dismissed the case on grounds that the Hedges plaintiffs lacked “standing” to challenge the NDAA detention provisions, because they faced no “imminent” threat of arrest.  But the Second Circuit judges expressly declined to reach the merits of the case, leaving undisturbed the findings in Judge Forrest’s opinion.

In December 2013, the Hedges plaintiffs asked the Supreme Court to grant their petition for review.  Along with assertions the Second Circuit judges applied the wrong test for deciding standing questions, their petition cited an NDAA provision that “existing law and authorities relating to the detention of United States citizens” would not be affected by the NDAA law.  Arguing that Korematsu had never been overruled and could be considered among the “authorities” supporting the NDAA detention provisions, the petition asked the Court to consider “whether Korematsu should be overruled?”

The current solicitor general, Donald Verrilli, has until February 24, 2014, to file a response to the Hedges petition with the Supreme Court.  In January, lawyers who secured the vacation of the convictions of the wartime internment resisters sent Verrilli a letter asking that he join the request for overruling the decisions in all three cases, or at least making clear the government’s disavowal of them as among the “authorities” for the indefinite detention of persons charged under the NDAA provisions.

General Verrilli has stated privately that he will “seriously consider” taking one of these positions—asking for judicial overruling or at least repudiation of the internment decisions—in his Hedges response.  If he does so, the justices have several options. They could grant the petition in whole or part, including the request for overruling Korematsu.

Or they could simply deny the petition without recorded dissent or comment, leaving in place the Second Circuit dismissal for lack of standing, without addressing the overruling request.

A third option, assuming the Court denies the petition, is for one or more justices (perhaps a majority or even all nine) to append a “statement” to the denial order that makes clear their repudiation of the internment decisions as wrongly decided and lacking in precedential value in future cases.  There is ample precedent for such statements; all the current justices, except Elena Kagan, have written or joined statements that agree, often reluctantly, with denial of certiorari petitions, but express positions on issues raised in them.  Such statements, of course, fall short of formal overruling, but nevertheless send a message to lawyers and lower-court judges.

One might argue that such a collective repudiation statement is unnecessary.  “I think we repudiated [Korematsu] is a later case,” Justice Scalia said in his recent Hawaii remarks.  He didn’t cite the case, but probably referred to the Court’s 1995 decision in Adarand Constructors v. Pena, in which Justice Sandra Day O’Connor, writing for a 5-to-4 majority in striking down a statutory preference for “disadvantaged minorities” in federal contracts, stated that Korematsu was based upon “an illegitimate racial classification,” adding that “[a]ny retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.”

Significantly, none of the four Adarand dissenters (the Court’s “liberals” at the time) took issue with these statements.  Justice Ruth Bader Ginsburg, joined by Stephen Breyer, wrote that in Korematsu the Court “yielded a pass for an odious, gravely injurious racial classification.”

This “repudiation” of Korematsu might well satisfy those who have long asserted its judicial demise.  But it was based upon the racial classification of Japanese Americans as dangerous to wartime security, not on the principle that indefinite detention without trial of American citizens violates the Constitution.  That is the “loaded weapon” the Court could finally disarm with an overruling or collective repudiation of the internment decisions in the Hedges case.

Solicitor General Verrilli can assist the Court in this long-overdue step with his response to the Hedges petition.  In deciding what the government will ask the Court to do, he might seek the advice of Attorney General Eric Holder, who has stated that “[t]he Court’s decision in Korematsu is inarguably one of the darkest moments in American constitutional history.”  Perhaps that decision will finally be given the burial it has long deserved, erasing a stain on the Court’s integrity and reputation.

Peter Irons is Professor of Political Science, Emeritus, at the University of California, San Diego.  A graduate of Harvard Law School and member of the Supreme Court bar, he served as counsel to Fred Korematsu and Gordon Hirabayashi in the successful efforts to vacate their wartime convictions.

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