For decades, Karen Korematsu has hoped and prayed that someday the U.S. Supreme Court would overturn its infamous 1944 decision upholding the mass incarceration of her father, Fred, and 120,000 others of Japanese descent during World War II.
But when the high court condemned that decision today, Korematsu was not overjoyed. She was disheartened.
“My heart sank,” she said. “I feel the court all over again dishonored my father and what he stood for. To me what the Supreme Court did was substitute one injustice for another.”
That’s because the court rejected the prior Korematsu ruling in a decision that upheld the Trump administration’s ban on visitors from five Muslim-majority nations — Iran, Libya, Somalia, Syria and Yemen — as well as North Korea and some government officials from Venezuela. In her dissent, Justice Sonia Sotomayor cited “stark parallels” between the travel ban decision and the Korematsu ruling. That didn’t sit well with Chief Justice John G. Roberts Jr.
“Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” he said. “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of the presidential authority. But it is wholly inapt to liken that morally repugnant order” to a policy “denying certain foreign nationals the privilege of admission.”
Sotomayor’s reference to Korematsu “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,’ ” Roberts wrote, quoting a dissent written to the 1944 ruling by former Justice Robert Jackson.
Fred Korematsu, an Oakland, Calif., native whose Japanese immigrant parents ran a floral nursery, was 23 when he was arrested in San Leandro for defying the mass incarceration orders issued after Japan bombed Pearl Harbor in 1941. He agreed to become a test case challenging the constitutionality of the orders but the high court upheld them on the grounds of military necessity.
In 1983, a federal court in San Francisco overturned Korematsu’s conviction after researchers found documents proving government misconduct in his case — federal attorneys deliberately suppressed evidence of Japanese-American innocence in arguing for the incarceration. But the high court decision has continued to stand.
Today, legal scholars differed on whether the justices actually overturned the Korematsu decision. Some argued that the statements by Sotomayor and Roberts were opinions not central to the travel ban case so would not be binding in future court decisions.
Jerry Kang, a University of California, Los Angeles law professor and expert on the Japanese-American internment cases, said he believed the court did officially overturn the Korematsu decision by calling it “gravely wrong the day it was decided.” But, he said, the court did so using subtle language that did not focus on what he called the ruling’s central mistake of “excessive deference and willing blindness to racial prejudice.” Kang added that the court majority “oddly replicated” that same mistake today by again deferring to the government’s national security arguments supporting the travel ban and declining to see anti-Muslim prejudice.
Dale Minami, a San Francisco attorney who helped Korematsu overturn his conviction four decades ago, had joined others in asking the high court to overturn the internment decision in an amicus brief they filed in the Muslim travel ban case. But Minami said today that he was not exactly celebrating.
“It’s a hollow victory because Muslims are still being banned,” he said.
For Kathy Masaoka, today’s ruling was particularly bittersweet. She began actively reaching out to Muslims after the Sept. 11 terrorist attacks sparked rampant Islamophobia that reminded her, she said, of the World War II racism that forced her family into concentration camps in California’s Manzanar and in Gila River, Ariz.
Since then, she and other Japanese-American organizations have developed strong ties with Muslim groups, co-hosting iftars to break Ramadan fasts and joint pilgrimages to Manzanar. The two communities launched #VigilantLOVE, a Los Angeles coalition to support arts, healing and civil rights, after the 2015 terrorist attacks in San Bernardino, Calif., and Paris.
“It’s like the court is trying to create a wedge between Japanese-Americans and Muslims by saying the two cases are different but to us they are basically the same,” said Masaoka, co-chair of Nikkei for Civil Rights and Redress. “The Supreme Court failed Japanese-Americans in 1942 and has failed the country again.”
Korematsu said her father would probably take no comfort in today’s decision. He had always feared his case would be used to justify racial profiling, she said. She recalled standing in his San Leandro kitchen after Sept. 11, telling him the George W. Bush administration had just cited his case as a possible precedent to round up Muslims.
“My father was thoroughly disgusted,” she said.
“In 1944, it was about racial profiling and in 2018 it’s about racial and religious profiling,” Korematsu said. “I’m very upset and I think my daddy would have felt the same way.”