The Landmark Cases episode this week focused on this case (Peter Irons and Korematsu's daughter as guests) though it is best to consider three (or four, one a companion case*) Japanese Internment Cases here. Irons has written much about the people involved here and later on had an important role in having the three prosecutions reversed in the 1980s.
The overall theme here was a bunch of honestly progressive leaning judges (as Irons argued, Chief Justice Stone was first appointed by a Republican, but he wouldn't be one today) going along with a rank violation of civil liberties with some clear hesitance. It might be seen as somewhat as stretch to add that last part, but reading the cases -- with various concurrences and in the lead one here three dissents -- there were caveats, attempts (rather hard to take seriously at times) to limit and various passages that could be used later on to protect civil liberties. The point holds that over a hundred thousand loyal Japanese Americans, more than three quarters citizens, were interned in concentration camps for around three years.
After Pearl Harbor, it was determined that the Japanese would have to be removed from the West Coast. This was a disputed matter including the head of the FBI being against the idea. Internal debate in the FDR Administration -- reflected again by various opinions written by his appointees to the Supreme Court -- helped provide Peter Irons evidence that convictions in the cases here rested on illegitimate grounds. As Justice Breyer noted in his latest book, even the brief to the Supreme Court in this book had a surprising footnote that the military report justifying internment was not being relied on except to state the facts of the process.
The first Supreme Court case in the bunch, decided in mid-1943, dealt with a curfew requirement. It gave the President a broad power to wage war successfully and argued it was reasonable to suspect the Japanese specifically. The irony that racist policies furthered the insular nature of the group was not focused upon. There were three concurrences. Justice Douglas, who Peter Irons noted at first was going to dissent in Korematsu. spent a lot of verbiage to justify his vote, basically based on wartime emergency conditions. He suggested that individualized hearings -- when time allowed -- might be warranted. Rutledge (who Stevens later clerked for) briefly noted he didn't think military orders here had total discretion, free from judicial review. Murphy, who had to be talked into joining, spent most of the time saying how bad the action was. The companion case is noted in the footnote.
Korematsu itself accepts military necessity but tries to cabin the reach. Justice Roberts (of "switch in time, saves nine" fame) in dissent ridiculed the idea that only the assembly order was at issue. They were being assembled to go to internment camps (the majority felt "concentration camps" had an ugly connotation and it was unfair to use that term) and he had no right to go anywhere else here. The majority introduced "suspect" classifications for race though denying racism was the incentive here:
Meanwhile, Frankfurter concurred to point out that various opinions showed that even in wartime the courts had the power to determine the legitimacy of governmental action, but it was proper here. This is worth noting with the "laws become silent in wartime" maxim and an idea that at least here it was true. There was a kernel of concern even here, with past episodes including the Civil War noted, of judicial review being present. It might be deemed but an empty platitude here but cases can be found where that level of cynicism should not be taken all the way.
The shame of it all is aggravated because the case was decided late 1944, purposely after the election. The FDR Administration already basically determined there was threat of sabotage etc. and was ready to start releasing the internees. In fact, the Court also decided Ex parte Endo at the same time. Justice Douglas wrote a rather remarkable opinion (again Roberts wouldn't buy it) holding that on statutory grounds there really wasn't authorization to inter anyone loyal, which the government here did not deny.
On some level, looking at the bare words of the order involved here, it did not specifically authorize this, so perhaps this is not without some basis. The idea is that if they were going to deny liberty like this, it better be crystal clear. But, there is a level of absurdity here given everything involved, including funding that clearly was based on knowledge of what was going on. Murphy reaffirmed he found the whole thing unconstitutional and noted that Endo -- if she was loyal and all -- should be able to go back to California, but that was still blocked.
In Hamdan v. Rumsfeld, the separate opinion of Souter and Ginsburg noted a Cold War statute left open a repeat, but a later law repealed the open-ended law "out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry." The plurality compared its non-"blank check" rule with the WWII precedent. But the justices back then believed they weren't doing that either. The difference a matter of degree, if a serious level given the scope involved. Korematsu himself offered amici briefs in such cases to remind. The opinion appears to be still good law, leading Peter Irons and others to ask the Obama Administration to use a standing case as a means to deny its staying power, which it did not do.
We have our own issues during the age of war on terrors, enemy combatants and so forth. The Japanese Internment Cases serve as a warning as well as something of a suggestion that even at our worse times, there was some concern for civil liberties.
ETA: I added some more material. One ironic thing to add is that where the Japanese did directly bomb -- Hawaii -- was treated differently partially since the size of the Japanese population made internment so difficult.
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* The lower court had some strong things to say about the limits of military justice in wartime but relied on the person losing his citizenship. It actually held that the curfew would be unconstitutional as applied to citizens. The USSC noted his citizenship was not in dispute so sent the case back to address a punishment resting on that ground.
The Supreme Court here did not treat citizenship as different nor in Ex Parte Quirin (military commission for sabatouers, one or more who were American citizens). See also, recent detainee cases like Rasul v. Bush. But, there is some difference here though "persons" (see, e.g, the Due Process Clause) have enough rights to cover the tens of thousands of non-citizens (basically since they weren't allowed to naturalize at the time) being mistreated. Cf. Rehnquist's book on justice during wartime that suggested as applied to aliens the cases might have been correct.
The overall theme here was a bunch of honestly progressive leaning judges (as Irons argued, Chief Justice Stone was first appointed by a Republican, but he wouldn't be one today) going along with a rank violation of civil liberties with some clear hesitance. It might be seen as somewhat as stretch to add that last part, but reading the cases -- with various concurrences and in the lead one here three dissents -- there were caveats, attempts (rather hard to take seriously at times) to limit and various passages that could be used later on to protect civil liberties. The point holds that over a hundred thousand loyal Japanese Americans, more than three quarters citizens, were interned in concentration camps for around three years.
After Pearl Harbor, it was determined that the Japanese would have to be removed from the West Coast. This was a disputed matter including the head of the FBI being against the idea. Internal debate in the FDR Administration -- reflected again by various opinions written by his appointees to the Supreme Court -- helped provide Peter Irons evidence that convictions in the cases here rested on illegitimate grounds. As Justice Breyer noted in his latest book, even the brief to the Supreme Court in this book had a surprising footnote that the military report justifying internment was not being relied on except to state the facts of the process.
The first Supreme Court case in the bunch, decided in mid-1943, dealt with a curfew requirement. It gave the President a broad power to wage war successfully and argued it was reasonable to suspect the Japanese specifically. The irony that racist policies furthered the insular nature of the group was not focused upon. There were three concurrences. Justice Douglas, who Peter Irons noted at first was going to dissent in Korematsu. spent a lot of verbiage to justify his vote, basically based on wartime emergency conditions. He suggested that individualized hearings -- when time allowed -- might be warranted. Rutledge (who Stevens later clerked for) briefly noted he didn't think military orders here had total discretion, free from judicial review. Murphy, who had to be talked into joining, spent most of the time saying how bad the action was. The companion case is noted in the footnote.
Korematsu itself accepts military necessity but tries to cabin the reach. Justice Roberts (of "switch in time, saves nine" fame) in dissent ridiculed the idea that only the assembly order was at issue. They were being assembled to go to internment camps (the majority felt "concentration camps" had an ugly connotation and it was unfair to use that term) and he had no right to go anywhere else here. The majority introduced "suspect" classifications for race though denying racism was the incentive here:
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. ...
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.Murphy disputed this on the merits. Roberts had a nice firm and honest dissent on the rights of citizens. Jackson spoke of the bill of attainder be applied here and didn't want to dirty the hands of the courts by legitimizing it. Realistically, he noted, military actors will do nasty things in wartime that the courts can not stop, but here they were brought a case to decide.
Meanwhile, Frankfurter concurred to point out that various opinions showed that even in wartime the courts had the power to determine the legitimacy of governmental action, but it was proper here. This is worth noting with the "laws become silent in wartime" maxim and an idea that at least here it was true. There was a kernel of concern even here, with past episodes including the Civil War noted, of judicial review being present. It might be deemed but an empty platitude here but cases can be found where that level of cynicism should not be taken all the way.
The shame of it all is aggravated because the case was decided late 1944, purposely after the election. The FDR Administration already basically determined there was threat of sabotage etc. and was ready to start releasing the internees. In fact, the Court also decided Ex parte Endo at the same time. Justice Douglas wrote a rather remarkable opinion (again Roberts wouldn't buy it) holding that on statutory grounds there really wasn't authorization to inter anyone loyal, which the government here did not deny.
On some level, looking at the bare words of the order involved here, it did not specifically authorize this, so perhaps this is not without some basis. The idea is that if they were going to deny liberty like this, it better be crystal clear. But, there is a level of absurdity here given everything involved, including funding that clearly was based on knowledge of what was going on. Murphy reaffirmed he found the whole thing unconstitutional and noted that Endo -- if she was loyal and all -- should be able to go back to California, but that was still blocked.
In Hamdan v. Rumsfeld, the separate opinion of Souter and Ginsburg noted a Cold War statute left open a repeat, but a later law repealed the open-ended law "out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry." The plurality compared its non-"blank check" rule with the WWII precedent. But the justices back then believed they weren't doing that either. The difference a matter of degree, if a serious level given the scope involved. Korematsu himself offered amici briefs in such cases to remind. The opinion appears to be still good law, leading Peter Irons and others to ask the Obama Administration to use a standing case as a means to deny its staying power, which it did not do.
We have our own issues during the age of war on terrors, enemy combatants and so forth. The Japanese Internment Cases serve as a warning as well as something of a suggestion that even at our worse times, there was some concern for civil liberties.
ETA: I added some more material. One ironic thing to add is that where the Japanese did directly bomb -- Hawaii -- was treated differently partially since the size of the Japanese population made internment so difficult.
---
* The lower court had some strong things to say about the limits of military justice in wartime but relied on the person losing his citizenship. It actually held that the curfew would be unconstitutional as applied to citizens. The USSC noted his citizenship was not in dispute so sent the case back to address a punishment resting on that ground.
The Supreme Court here did not treat citizenship as different nor in Ex Parte Quirin (military commission for sabatouers, one or more who were American citizens). See also, recent detainee cases like Rasul v. Bush. But, there is some difference here though "persons" (see, e.g, the Due Process Clause) have enough rights to cover the tens of thousands of non-citizens (basically since they weren't allowed to naturalize at the time) being mistreated. Cf. Rehnquist's book on justice during wartime that suggested as applied to aliens the cases might have been correct.
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