Supreme Court overrules Korematsu case that upheld World War II Japanese American incarceration

Ray Locker | USA TODAY

Show Caption Hide Caption Trump's travel ban compared to the internment of Japanese-Americans Karen Korematsu, the daughter of Fred Korematsu, who fought Japanese-Americans' incarceration during World War II all the way to the Supreme Court, is among those opposing President Trump's travel ban on majority-Muslim countries.

WASHINGTON — The Supreme Court Tuesday overruled a notorious 1944 decision allowing internment of 120,000 Japanese Americans when it backed President Trump's right to limit travel to the United States by residents of predominantly Muslim countries.

In Korematsu v. United States, the court ruled 6-3 on Dec. 18, 1944, that the U.S. government had the right to exclude and detain 120,000 Japanese Americans during World War II because of national security concerns. The ruling horrified civil libertarians at the time and has been likened by modern legal historians to the Dred Scott decision that upheld slavery.

Fred Korematsu was a 23-year-old Japanese American shipyard welder who resisted the government's orders to leave "exclusion areas" on the West Coast. Those areas were created by the military, because of fears Japanese Americans might commit acts of sabotage in support of the Japanese government that attacked the United States at Pearl Harbor on Dec. 7, 1941.

Korematsu was later arrested and convicted of violating a military order. He was detained at the government-run concentration camp for Japanese Americans in Topaz, Utah, and appealed his case to the Supreme Court.

Dissenters of Tuesday's ruling compared the support for the travel ban to Korematsu, as Justice Sonia Sotomayor said the decision "invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion."

On Tuesday, however, Chief Justice John Roberts disagreed and overruled Korematsu as he also upheld the travel ban: "The dissent’s reference to Korematsu, however, 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.'"

Sotomayor's dissent Tuesday in the travel ban case elaborated on Roberts' claims. "Today, the Court takes the important step of finally overruling Korematsu, denouncing it as 'gravely wrong the day it was decided,'" Sotomayor wrote. "This formal repudiation of a shameful precedent is laudable and long overdue."

"I don’t think there’s any doubt that the Court has overruled Korematsu in today’s decision," said Pratik Shah, a Washington-based attorney who had fought the travel ban. Roberts "took that detour specifically to do make the overruling 'express' — saying it was “wrong the day it was decided' and that it 'has no place under the Constitution.' And all consistent with Justice Sotomayor’s unrebutted characterization that the decision has been 'finally overruled.'"

“Finally after 74 years, on paper, the court says Korematsu was wrong, but the rest of the opinion repeats that historical error,” said Cecillia Wang, deputy legal director for the American Civil Liberties Union.

The Korematsu decision, which upheld the exclusion based on military necessity, came on the same day that the Supreme Court ruled 9-0 that the detention of Japanese Americans who were loyal to the U.S. government was illegal. The case, Ex parte Endo, was brought by Mitsuye Endo, a California state employee, Both decisions came a day after President Franklin Roosevelt ended the exclusion of Japanese Americans from the West Coast.

National security claims

Just as the current Supreme Court cited national security concerns for supporting the travel ban, so did the court in 1944. Justice Hugo Black wrote for the majority that "to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue,"

However, the national security justification for the Japanese American incarceration was revealed to be bogus. In the early 1980s, legal historian Peter Irons uncovered Justice Department documents that indicated federal officials knew there existed no evidence to support some of their claims about a security threat posed by people of Japanese ancestry living on the West Coast.

Many of the claims by the military Western Defense Command to justify Executive Order 9066, which Roosevelt signed on Feb. 19, 1942, involved so-called "fifth column" aid for pro-Japanese sabotage in the United States. An April 24, 1944, memorandum by War Department lawyer John Burling said "the vast mass of fifth column folklore, which insofar as concrete evidence is concerned, is almost entirely baseless."

Irons' discovery enabled attorneys working with Korematsu to win a coram nobis ruling in federal court in 1983 that Korematsu's conviction was based on false evidence. U.S. District Judge Marilyn Hall Patel ruled in November 1983 that the Korematsu case was a "caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."

Now, despite the unhappiness surrounding the travel ban decision, supporters of Korematsu consider Robert's opinion a "silver lining," wrote Dale Minami, one of Korematsu's coram nobis attorneys, in an email.

Contributing: Michael Kiefer