A People's History of the Supreme Court

by Peter Irons

  Min Yasui’s trial in Portland took a bit longer, largely because Judge Alger Fee took over the questioning from the government’s lawyer, Charles Burdell, Who had pressed the “genetic disloyalty” claim in his pretrial brief. Fee surprised Min, who had never been to Japan, with questions about Japanese customs and beliefs. “What is Shinto?” he abruptly asked. Min was clearly puzzled by the question. “Shinto? As I understand, Shinto is the national religion of Japan,” he answered. “Do you give adherence to its precepts?” Fee asked. “My mother and father were Methodists in Japan,” Min replied, “and I myself have been a Methodist in this country and I don’t know the precepts of the Shinto religion.” Fee pressed on doggedly: “Was not Shinto practiced in your household?” Min tried to conceal his irritation. “Both my mother and father are good, devout Methodists,” he assured Fee. “They are really Christians.” Fee heard the case without a jury, and pronounced Min guilty for his admitted curfew violation. Before passing sentence, Fee ruled in a written opinion that despite Min’s American birth and citizenship, he considered him “a citizen of Japan and subject to the Emperor of Japan,” a finding the judge based on “the nativity of his parents and the subtle nuances of traditional mores engrained in his race by centuries of social discipline.” After linking Min to “the treacherous attack by the armed forces of Japan” on Pearl Harbor, Judge Fee imposed the maximum penalty of one year in prison and a $5,000 fine.

  Fred Korematsu came to trial in San Francisco before Judge Adolphus St. Sure, who differed from his Seattle and Portland colleagues in treating the defendant with respect. After an FBI agent testified about Fred’s draft-card forgery and plastic surgery, the soft-spoken defendant took the stand to explain his actions. His description of Dr. Bennett Masten’s bargain-rate surgery drew smiles in the courtroom. “I don’t think he made any change in my appearance,” he said, “for when I went to the Tanforan Assembly Center everyone knew me and my folks didn’t know the difference.” Fred told the judge that he had applied for military service before Pearl Harbor, but had been rejected on medical grounds. “As a citizen of the United States I am ready, willing, and able to bear arms for this country,” he affirmed. This forthrightness impressed Judge St. Sure, but he nonetheless found Fred guilty and sentenced him to a five-year probationary sentence. When Fred’s lawyer announced his intention to appeal the conviction, St. Sure obligingly set bail at $2,500. Fred was legally free to remain at liberty, but when he stepped outside the courthouse he was grabbed by a waiting military policeman, who pulled a pistol and took his prisoner to the army jail at General DeWitt’s headquarters, from which Fred was shipped to the Tanforan Racetrack, where his parents were confined in horse stalls, awaiting transfer to an internment camp in the Utah desert.

  All three test-case defendants appealed to the Supreme Court after circuit court judges upheld their convictions, but the Justices sent Fred Korematsu’s case back to the circuit court for a ruling on Judge St. Sure’s sentencing decision. Before it returned, the Court heard argument in the Hirabayachi and Yasui cases in April 1943. The briefs on both sides stuck closely to legal issues and included no evidence on the government’s claim that Japanese Americans posed a danger of “espionage and sabotage” to West Coast defense facilities. There was, in fact, no evidence that any member of this racial group had committed these treasonous acts.

  The government’s brief in Hirabayachi v. United States asserted that “an unknown number of the Japanese may lack to some extent a feeling of loyalty toward the United States” because of resentment against legal discrimination. Largely drafted by Arnold Raum, a Harvard Law School graduate in the solicitor general’s office, the brief cited laws barring Japanese immigrants from American citizenship and landownership. This discrimination supposedly produced “a consequent tie to Japan” and a “compensatory feeling of racial pride” in Japan’s achievements. Asserting without any supporting evidence “the virtually impossible task of promptly segregating the potentially disloyal from the loyal” among Japanese Americans, Raum argued that “the only certain way” of removing the disloyal “was to remove the group as a whole.”

  Solicitor General Charles Fahy, who commanded the legal battalion that won the Wagner Act cases in 1937, defended General DeWitt’s orders in arguing the Hirabayashi case in 1943. Claiming that Japanese Americans “had never become assimilated” into American society, he called it “not unreasonable” to fear that members of this group “might assist the enemy.” The fear he attributed to DeWitt “was not based on race but on these other factors,” Fahy assured the justices. Harold Evans, who argued for Gordon Hirabayashi, relied on the Supreme Court’s 1866 ruling in Ex parte Milligan for the proposition that “legislative authority over civilians may not be delegated to the military when the area in question is not a strictly military area.” The Milligandecision, holding that Confederate sympathizers could not be tried by military tribunals while civilian courts remained open, did not impress Justice Felix Frankfurter, an army prosecutor during World War I. “There’s a lot in Milligan,” he told Evans, “that will not stand scrutiny in 1943, a lot of talk that is purely political.” Frankfurter did not elaborate on his cryptic statement, leaving Evans without a question to answer. “That’s for this Court to decide,” he weakly replied.

  The Court issued its Hirabayashi decision on June 21, 1943, along with a short opinion in the Yasui case. Chief Justice Stone wrote for a unanimous Court in upholding Gordon Hirabayashi’s conviction for curfew violation. He sidestepped the conviction for violating the evacuation order, on the ground that judge Black had imposed concurrent sentences on both counts and that Hirabayashi consequently faced no additional penalty for the evacuation violation. Stone most likely dodged the more difficult issue of evacuation in hopes that government officials might end the internment program before Fred Korematsu’s case, which directly challenged the evacuation orders, returned from the Circuit court. In that event, of course, the case—and the internment issue—would become moot and the Court would be off the hook.

  The Chief Justice also dodged the statement in Footnote Four of his Carolene Products opinion that laws directed againts racial minorities should be subjected to “more searching judicial inquiry” than statutes involving economic regulations. The author of the “strict scrutiny” doctrine proved highly lenient in judging the government’s “military necessity” claims. “Distinctions between citizens solely because of their ancestry,” he conceded, “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” But “the danger of espionage and sabotage” by Japanese Americans overrode the Constitution’s promise of “the equal protection of the laws” to every American, regardless of ancestry. Stone proclaimed that “those facts and circumstances which are relevant to measures for our national defense” provided military officials with reason to “place citizens of one ancestry in a different category from others.” And what were the facts and circumstances that justified General DeWitt’s military orders? On this crucial issue, Stone accepted Solicitor General Fahy’s “racial characteristics” argument without questioning its veracity.

  “At a time of threatened Japanese attack upon this country,” Stone wrote, “the nature of our inhabitants’ attachments to the Japanese enemy was consequently a matter of grave concern.” Citing the references in Arnold Raum’s brief to laws directed against Japanese immigrants. Stone concluded that such discrimination had “intensified their solidarity” and “prevented their assimilation as an integral part of the white population.” Raum’s brief also contained data on the number of children who attended Japanese language classes and those who returned to Japan for schooling. Stone concluded from this data that Japanese Americans sought “relatively little social intercourse between them and the white population.” It was thus “reasonable” for military authorities to consider Japanese Americans “a menace to the national defense and safety” and to restrict their move
ments. All these factors gave President Roosevelt and War Department officials “a rational basis for the decision” to “set these citizens apart from others who have no particular association with Japan.”

  One week before the Court issued its Hirabayashi decision, Justice Felix Frankfurter had referred to his Jewish ancestry in angry response to the overruling of his Gobitis opinion in the Barnette decision. Frankfurter had rejected Justice Frank Murphy’s appeal to avoid “catapulting a personal issue into the arena.” But Frankfurter made his own appeal when Murphy circulated a blistering dissent in Hirabayashi, finding a “melancholy resemblance” between the restrictions on Japanese Americans and “the treatment accorded to members of the Jewish race.” in Germany. Frankfurter asked Murphy to consider whether his statement might be read as accusing his colleagues of “playing into the hands of the enemy.” This appeal to wartime unity convinced Murphy to change his dissent to a concurrence, but he retained the comparison of Japanese Americans to German Jews and his conclusion that the military orders approached “the very brink of constitutional power.”

  Stone’s wish that government officials would end the internment program and thereby moot the Korematsu case was not granted before the Court heard arguments in October 1944. The decision to keep Japanese Americans behind barbed wire, long after Japanese forces posed any threat to the West Coast, reveals the dominance of politics over law. Dillon Mayer, who headed the Interior Department agency that ran the internment camps, appealed to Assistant Secretary of War John J. McCloy in October 1943 for “the return of evacuees to the West Coast” because “the military necessity for total exclusion from this area no longer exists.” McCloy replied that “active and powerful groups in California” opposed the return of Japanese Americans. “This means that considerations other than of mere military necessity enter into any proposal” for ending the internment program, McCLoy added. Attorney General Francis Biddle appealed directly to President Roosevelt in December 1943. “The present practice of keeping loyal American citizens in concentration camps on the basis of race for longer than is absolutely necessary is dangerous and repugnant to the principles of our Government,” Biddle argued. Roosevelt simply ignored his letter.

  The real reason for delay became apparent as the 1944 elections approached. Secretary of War Stimson raised the internment question at a cabinet meeting in May of that year. Biddle recorded Stimson’s admission that internment could be ended “without danger to defense considerations but doubted the wisdom of doing it at this time before the election.” President Roosevelt agreed with Stimson. interior Secretary Harold Ickes made another appeal to Roosevelt in June 1944, arguing that the detention of Japanese Americans “is clearly unconstitutional in the present circumstances.” He predicted that “the continued retention of these innocent people in the relocation centers would be a blot upon the history of this country.” Roosevelt again raised his electoral concerns. “I think the whole problem, for the sake of internal quiet, should be handled gradually,” he told Ickes. Later in June, John McCloy attended a White House meeting to present the army’s plan for returning a “substantial number” of Japanese Americans to the West Coast. Roosevelt “put thumbs down on this scheme,” McCloy reported to army officials. “He was surrounded at the moment by his political advisors,” McCloy added, “and they were harping hard that this would stir up the boys in California and California, I guess, is an important state.” McCloy told the army officials that internment could not end before “a date somewhat later than November 6.” The elections, as McCloy well knew, would be held on November 6. On that date, the voters gave Roosevelt a fourth presidential term and the Democrats picked up four House seats in California. Japanese Americans, who had been deprived of their right to vote, remained behind barbedwire fences while Roosevelt celebrated his victory in the White House.

  Argument in Korematsu v. United States began on October 11, 1944. The justices also heard argument in Ex parte Endo, which involved a habeas corpus petition filed by Mitsuye Endo, a young Japanese American woman who had volunteered to test the government’s power to detain citizens the army had conceded were loyal. Her case had languished in the lower courts for more than two years before the Supreme Court agreed to hear Endo’s appeal from a districts court ruling that dismissed her petition. Since the government made no effort in its Endo brief to defend the continued detention of loyal Japanese Americans, the central issue before the justices was the question, raised in the Korematsu case, of the power to order their evacuation in the first place. Once again, the government’s Korematsu brief made the “racial characteristics” argument that had convinced the Court in Hirabayashi. But this time, the brief turned the argument: completely around. Government, lawyers now claimed that mass internment was necessary to protect Japanese Americans against racial hostility, rather than to protect military installations against their hostile reaction to discrimination. No longer were DeWitt’s orders a “reasonable” response to the dangers posed by disloyal Japanese Americans. They had in fact been designed to “prevent incidents involving violence between Japanese migrants” and Caucasians who blamed them for Pearl Harbor. “The belief of the military authorities in the danger of violence has not been shown to be unreasonable,” the government’s brief weakly claimed. Fred Korematsu had not met “the burden which rested upon him” to disprove the evidence “of hostility to the evacuees, which lay at the basis of the decision to impose detention” on them. This about-face in the government’s position reflected the fact that Japanese forces posed no threat to the West Coast after 1943, eroding arguments based on the danger of espionage and sabotage by Japanese Americans.

  The obvious absurdity of forcing Korematsu to prove that whites were not hostile toward Japanese Americans did not faze Justice Hugo Black, who wrote for six justices in upholding Korematsu’s criminal conviction. Determined to rescue the government from an untenable position, Black returned to Hirabayashi for support, quoting Stone’s claim that the danger posed by “disloyal” Japanese Americans justified the curfew imposed on them. Black brushed aside complaints that removing people from their homes imposed greater hardships than curfews. “But hardships are part of war,” he replied, “and war is an aggregation of hardships.”

  Solicitor General Fahy had argued that racial hostility against Fred Korematsu justified his internment. Justice Black denied that racial hostility had anything to do with the case. “Korematsu was not excluded from the Military Area because of hostility to him or his race,” Black asserted. “He was excluded because we are at war with the Japanese Empire” and because “the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast” until the danger passed. The internment camps protected West Coat residents from people like Fred Korematsu, not the other way around. Years later, Black exposed the racial stereotypes on which his opinion rested. “People were rightly fearful of the Japanese,” he told an interviewer, because “they all look alike to a person not a Jap.”

  Justice Murphy stood with the Court at “the very brink of constitutional power” in the Hirabayashi case. But he would not stand with Black in Korematsu. The exclusion of Japanese Americans from their homes, he wrote in dissent, went over that brink “and falls into the ugly abyss of racism.” Murphy attacked the racial stereotypes on which both Stone’s and Black’s opinions rested. He called the government justification of internment “largely an accumulation of much of the misinformation, half-truths and insinuations that for year have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.” Murphy repeated the word that must have stung his colleagues: “I dissent, therefore, from this legalization or racism.”

  Murphy had withdrawn his Hirabayashi dissent because he did not want to stand alone on the constitutional battlefield. But two colleagues stood with him in Korematsu. justices Owen Ro
bert and Robert Jackson wrote separate dissents with different objections to Black’s opinion. Black denied that Fred Korematsu faced detention if he violated the evacuation order, asserting that he could have left California before the order became effective. This struck Roberts as a denial of reality, because an earlier order forbid Korematsu from leaving the state. He called the two orders “a cleverly devised trap to accomplish the real purpose of the military authorities, which was to lock him up in a concentration camp.” Jackson accused the majority of validating “the principle of racial discrimination” under the guise of military necessity. “The 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,” he warned.

  The Court announced its Korematsu decision on December 18, 1944, a Monday, along with a unanimous ruling that reversed the dismissal of Mitsuye Endo’s habeas corpus petition. Justice Douglas wrote the Endo opinion for the court, declining to reach “the underlying constitutional issues which have been argued.” He simply held that military authorities had “no authority to subject citizens who are concededly loyal” to continued detention. Douglas wrote an equivocal opinion in Endo to avoid a head-on collision with Justice Black’s claim in Korematsu that the Constitution did not block General DeWitt’s power to order the evacuation of all Japanese Americans, Justices Murphy and Roberts, needled Douglas in separate concurrences; Roberts assailed his colleague for encouraging “the evasion of law and the violation of constitutionnal rights” by government officials.