A People's History of the Supreme Court

by Peter Irons

  The timing of the Korematsu and Endo decisions was no accident. The Court had waited to issue the opinions while government officials—most likely alerted by Justice Frankfurter—prepared for the Court’s ruling that loyal Japanese Americans could no longer be detained. One day earlier, in an unusual Sunday statement, the War Department had issued a press release. “Those persons of Japanese ancestry whose records have stood the test of Army scrutiny during the past two years,” the release stated, would be released from internment camps and “permitted the same freedom of movement throughout the United States as other loyal citizens and law-abiding aliens.” The decision to close the internment camps met with a mixed reaction on the West Coast. Press reports of the new policy played up the threat of vigilante action: “Outbreak of Violence Seen by Nips’ Return,” headlined the Los Angeles Times. Public officials, however, did their best to protect the returning Japanese Americans. California governor Earl Warren, an original advocate of mass evacuation, proclaimed his belief that “all Americans will join in protecting constitutional rights, and will maintain an attitude that will discourage friction and prevent civil disorder.” Only a few scattered incidents of violence and harassment marred the peaceful return of Japanese Americans to their homes, farms, and businesses along the West Coast.

  The impact: of Supreme Court decisions is often immediately apparent; the Gobitis ruling in 1940 provoked a wave of persecution against Jehovah’s Witnesses. But that decision was reversed just three years later, after the Court realized the destructive consequences of its action. The impact on Japanese Americans of the Hirahayashi and Korematsu decisions, however, was not evident to many people for more than three decades after the Court upheld their exclusion from the West Coast. The former internees returned to their communities after the war and rebuilt their lives as hardworking, law-abiding citizens. But underneath their image as a “model minority” was pent-up anger at the injustice they endured for no reason but their race. Some of them, and many of their children, marched for civil rights and against the Vietnam War. During the 1970s, several groups of Japanese Americans began a grassroots lobbying campaign, asking Congress to make symbolic payments to Japanese Americans who had been forced into internment camps.

  The first victory of the “redress movement” came in 1980 when Congress established a blue-ribbon Commission on Wartime Relocation and Internment of Civilians, charged with reviewing the mass internment and making recommendations for methods of redress. This nine-member body—which included former Supreme Court justice Arthur Goldberg—conducted hearings around the country at which more than 750 people testified, many speaking tearfully about their wartime hardships and lingering pain. In a 467-page report in 1983, the commissioners agreed unanimously that Japanese Americans had suffered a “grave injustice” that was produced by “race prejudice, war hysteria, and a failure of political leadership.” All but one commissioner-Republican congressman Daniel Lungren of California—recommended that Congress provide compensation of $20,000 for each survivor of the internment camps.

  The redress campaign included a legal effort to reverse the wartime convictions of Gordon Hirabayashi, Min Yasui,, and Fred Korematsu. Normally, criminal defendants cannot ask judges to reopen their cases after appeals have been exhausted and sentences completed. The only exception to the “finality” rule stems from one of the “ancient writs” of English law, called the writ of error coram nobis. This term is legal Latin for “error before us,” referring to the trial judges. This application for judicial relief is related to the better-known writ of habeas corpus, an order to “bring the body” of the defendant into court for a hearing on the legality of the detention. In coram nobis cases, the former defendant must show that “prosecutorail misconduct” during the original trial deprived him or her of a fair trial. There are two grounds for coram nobis relief: one requires proof that government lawyers deliberately withheld “exculpatory” evidence that would show the defendant’s innocence; the other involves the government’s introduction at trial of false evidence of the defendant’s guilt. The burden of proof on defendants is high, and coram nobis relief is rarely sought and even more rarely granted.

  The coram nobis effort in the wartime internment cases began in 1981, when Peter Irons (this book’s author and also a lawyer) was conducting research for a book on the cases, hoping to explain why the Supreme Court—with so many “liberal” members—made decisions in these cases that scholars have agreed were judicial “disasters,” as Yale law professor Eugene Rostow wrote in 1945. Using the Freedom of Information Act, Irons obtained the Justice Department’s files in the Hirabayashi, Yasui, and Korematsu cases, and he discovered several astounding documents. The “loaded weapons” that Justice Jackson warned about in his Korematsu dissent were really “smoking guns” of legal misconduct.

  Two memoranda by Edward Ennis, who headed the Justice Department’s Alien Enemy Control Unit, shot out of these files. He sent the first to Solicitor General Fahy in April 1943, shortly before Fahy’s Supreme Court argument in the Hirabayashi case. Ennis had obtained military intelligence reports to General DeWitt, informing him that no evidence existed to support claims of Japanese American disloyalty. Ennis reminded Fahy of his “duty to advise the Court of the existence” of these crucial reports. Failing to perform this duty “might approximate the suppression of evidence,” he warned. But Fahy ignored the warning and assured the Court that DeWitt had evidence of disloyalty among Japanese Americans before he signed the internment orders in 1942. Chief Justice Stone based his Hirabayashi opinion in large part on Fahy’s assurances, citing “the judgment of the military authorities” that “there were disloyal members” of the Japanese American community who constituted “a menace to the national defense and safety” on the West Coast.

  Ennis sent another memorandum to Fahy in September 1944, during his preparation for the Korematsu argument. Suspicious of General Dewitt’s claims to have evidence of “espionage and sabotage” by Japanese Americans, Ennis had found more intelligence reports that refuted the charges DeWitt made in his “Final Report” on the internment program. Excerpts of DeWitt’s report were included in the Korematsu brief that Fahy was about to file with the Court. Ennis urged Fahy to disavow the report’s claims that “overt acts of treason were being committed” by Japanese Americans. “Since this is not so,” Ennis wrote, “it is highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected.” Again, Fahy ignored Ennis and assured the justices that he vouched for “every sentence, every line, and every word” in DeWitt’s report. Again, the Court accepted Fahy’s assurances in upholding Fred Korematsu’s conviction; Justice Hugo Black cited DeWitt’s report as providing sufficient “evidence of disloyalty” among Japanese Americans to justify their mass evacuation from the West Coast.

  Armed with these “smoking guns” and other records of legal misconduct, Irons tracked down Gordon Hirabayashi, Min Yasui, and Fred Korematsu and showed them his findings. All three men, then in their sixties, agreed to join an effort to erase their criminal records. Irons then recruited a team of committed young lawyers, most of them the children of internment camp survivors, headed by San Francisco attorney Dale Minami. The coram nobis team prepared a 150-page petition, which was submitted in 1983 to federal district judges in San Francisco, Portland, and Seattle, the courts in which the “test case” defendants had been tried and convicted in 1942. Based entirely on evidence from government files, the petition urged the judges “to carefully weigh the complete record of governmental abuses” in the wartime cases and “do justice where it was denied forty years ago.”

  Fred Korematsu’s petition came before federal judge Marilyn Hall Patel in November 1983, at a hearing crowded with internment survivors. After Dale Minami reviewed the evidence of legal misconduct, Fred made a brief statement to Judge Patel. “Your Honor, I still remember 40 years ago when I was handcuffed and arrested as a criminal,” h
e began. Fred recalled his family’s living quarters at the Tanforan Racetrack: “The horse stalls that we stayed in were made for horses, not human beings.” Speaking for “all Japanese Americans who were escorted to concentration camps,” he asked the government to “admit. that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” The government’s lawyer, Victor Stone, denied that the Supreme Court’s Korematsu decision still “lies around like a loaded gun” and asked Judge Patel to dismiss Korematsu’s petition. Ruling from the bench, she found “substantial support” in the petition that “the government deliberately omitted relevant information and provided misleading information” to the Supreme Court in 1944. Judge Patel passed a posthumous verdict on Solicitor General Fahy. “The judicial process is seriously impaired when the government’s law enforcement officers violate their ethical obligations to the court,” she concluded, Patel ended by reminding her audience—which needed no reminder—that the Korematsu decision “remains on the pages of our legal and political history” as a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.”

  Federal judges in Portland and Saettle later vacated the wartime convictions of Min Yasui and Gordon Hirabayashi. Justice Department lawyers had withdrawn an earlier appeal of Judge Patel’s ruling to the Ninth Circuit Court of Appeals, but they pursued an appeal in 1987 of the ruling of Judge Donald Voorhees that granded Hirabayashi’s petition. Government lawyers never revealed their reasons, but members of the coram nobis legal team suspected that pressure from veterans’ groups on the Reagan administration lay behind this legal about-face. During argument before the Ninth Circuit panel, Judge Mary Schroeder asked Victor Stone why the government had not acted on its own to vacate the convictions. “We didn’t think there was anyone out there who cared,” Stone replied, bringing gasps from the courtroom audience. Writing for the appellate panel, which unanimously reversed both of Hirabayashi’s wartime convictions, Judge Schroeder showed that she cared: “A United States citizen who is convicted of a crime on account of race is lastingly aggrieved.” Government lawyers did not appeal Schroeder’s ruling, and the coram nobis campaign ended with total victory: all three wartime defendants had their records cleared after more than forty years. Gordon Hirabayashi spoke the last words on the steps of the Seattle courthouse in which he received final vindication of his wartime stand: “Ancestry is not a crime.”

  The nation finally showed that it cared as well. At a White House ceremony in January 1998, President Bill Clinton placed the Presidential Medal of Freedom around Fred Korematsu’s neck. “A man of quiet bravery,” the president said, “Fred Korematsu deserves our respect and thanks for his patient pursuit to preserve the civil liberties we hold dear.” Fred pursued his constitutional rights for almost half a century, never losing his faith in American justice. But other Japanese Americans had lost faith, and more than sixty thousand camp survivors had died before Congress finally enacted a redress bill in 1988 and President Ronald Reagan signed the national apology that accompanied the redress checks of $20,000 to those who remained. For three years of their lives, imprisoned without charges in desolate camps and denied their rights and dignity, this was small compensation.

  28

  “My Little Soul Is Overjoyed”

  World War II, which began for the United States with the explosion of Japanese bombs at Pearl Harbor, ended with the deadliest explosion in history, the atomic blast that killed 100,000 Japanese in Hiroshima on August 6, 1945. Three days later, a second atomic bomb killed 50,000 Japanese in Nagasaki. The war that began on a “day of infamy” in Hawaii ended four years later with Japan’s unconditional surrender on September 2, 1945.

  Around the world, some twenty million people—including six million Jews in Europe—perished in the global battle between the Allies and the Axis. It would be wrong to call the war a contest between democracy and dictatorship, since America’s allies included the Soviet Union, which denied its people the “fundamental rights” our Constitution protected, and countries like England and France, whose colonial subjects lacked the “inalienable rights” that Americans had won through revolution.

  The war’s end did not stop the fighting, as revolutionary fervor swept around the world with campaigns for independence in Africa and Asia. Many of those who led movements against colonialism echoed the sentiments—and often the words—of earlier American revolutionaries. Ho Chi Minh, the Communist leader of Vietnamese resistance to French colonial rule, quoted from our Declaration of Independence in the one he drafted in 1945. “All men are created equal,” it began. “They are endowed by their Creator with certain inalienable rights; among these are Life, Liberty, and the Pursuit of Happiness.”

  Most of the postwar revolutionaries belonged to “colored” races, and some were Communists. They fought in their native lands against racism and political repression, with the moral support of many Americans. Had they been American citizens they would have been forced to obey Jim Crow segregation laws from Delaware to Texas, and been subject to prosecution for revolutionary speech under state and federal “sedition” laws. This irony struck many Americans as evidence that our Constitution did not “secure the blessings of liberty” to those whose race or politics differed from the majority. At the war’s end, people who were black in color or “Red” in politics found little protection in courtrooms from the “prejudice against discrete and insular minorities” that Justice Harlan Fiske Stone had condemned in Footnote Four of the Carolene Products decision in 1938, before the war began.

  On April 22, 1946, ten days past the first anniversary of Franklin Roosevelt’s death, Stone died after five years at the Court’s helm. Fittingly, he was presiding as Chief justice over the Court whose human rights agenda he helped to shape when a fatal stroke ended his life. Neither successor of these two men even approached their stature in American politics and law. Harry Truman had served as vice president for just three months, picked for that job to replace Henry Wallace, who had become a political liability for Roosevelt. A product of the Democratic machine in Kansas City, Missouri, Truman became a New Deal stalwart in the Senate and gained headlines by chairing a wartime committee that exposed profiteering in military contacts. More comfortable in smoke-filled rooms than at fancy-dress dinners, Truman reacted to his sudden accession to power with winning modesty: “Did you ever have a load of hay fall on you?”

  The choice of a new Chief Justice fell to Truman, who looked no further than his poker-table cronies. The new president had already added one Justice, naming, Republican senator Harold Burton of Ohio to replace Justice Owen Roberts, who resigned in July 1945 out of frustration with his dwindling influence. Under pressure from Republicans to keep their party represented on the Court, Truman picked Burton as a reward for supporting Roosevelt’s wartime policies. A former Cleveland mayor who joined the Senate in 1940, Burton had no judicial experience and no discernible judicial philosophy. He strongly backed the government in “Red” cases and usually supported the rights of blacks. Burton helped maintain the “wall of separation” between church and state and took a hard line in criminal cases. Over thirteen years on the Court, he wrote no opinions of lasting impact. The first of Truman’s four Court nominees was among the three later ranked as judicial “failures” by scholars.

  Truman’s choice of Fred Vinson or Kentucky to replace Stone as Chief Justice looked good on the surface. Vinson had experience in all three branches of government, in local, state, and federal posts. He moved upward in public office from city attorney to congressman to federal judge to treasury secretary. In naming Vinson, Truman lauded him as “capable of unifying the Supreme Court and thereby improving its public image.” During seven years as Chief justice, Vinson accomplished neither goal. Affable and modest, he resembled Truman in many ways. And like the president who gained his post through anoth
er’s sudden death, he came unprepared for the highest post in his life. Vinson’s talent for political compromise was sorely tested by the personal and ideological feuds that. divided the justices like the Hatfields and McCoys of his native Kentucky. But he stayed out of the conference-room arguments between Felix Frankfurter and Hugo Black and remained silent during the ugly Public fight that erupted when Robert Jackson accused Black of blocking his nomination as Chief Justice after Stone’s death.

  Truman’s crony almost always supported the positions of his administration, most notably in a 1952 case that challenged the president’s power to forestall a nationwide strike by seizing the country’s steel mills during the Korean War. Frankfurter and Black buried their differences in Youngstown Sheet & Tube Co. v. Sawyer, joining a majority of six that returned the mills to their owners. Black wrote for the Court in ruling that Truman acted without constitutional or congressional sanction; Vinson replied in dissent that those who would deny the president “extraordinary powers should be mindful that these are extraordinary times.” Vinson would not deny Truman any powers, making his vote as predictable as the sunrise. The few opinions he wrote lacked both substance and style; Vinson turned this job over to his clerks and “did all his 'writing’ with his hands in his pockets.” one biographer noted. The weakest Chief Justice oil the twentieth century died suddenly in September 1953, shortly after the Court heard argument in the historic school segregation cases. Vinson would most likely have failed to persuade his colleagues to join a unanimous opinion in Brown v. Board of Education, a task his successor, Earl Warren, performed brilliantly. In this respect, Vinson’s death came at a providential moment in American history.