Korematsu Was Finally Repudiated in 2018, and Its Lesson Is About Deference

It took the Supreme Court 74 years to say out loud that it had been wrong. In the opinion of a Chief Justice, in a case about something else entirely, and almost as an aside, the Court finally declared that Korematsu v. United States "was gravely wrong the day it was decided." Seventy-four years is a long time to leave a loaded weapon lying around.

The case is the most famous failure in the history of American judicial review, and it is a conservative's case as much as anyone's. A conservative believes in limited government, in the individual against the state, and in courts that check power rather than bless it. Korematsu is what happens when those beliefs are abandoned in a crisis. The lesson is not about one president or one war. It is about deference, and about the habit of judges to step back precisely when stepping forward matters most.

The order

On December 7, 1941, Japan attacked Pearl Harbor. The country was frightened, and there were real reasons to fear a second strike and espionage on the West Coast. On February 19, 1942, President Franklin Roosevelt signed Executive Order 9066. It authorized the Secretary of War and his military commanders to designate "military areas" and to prescribe who might enter, remain in or leave them. The order did not name any group. It did not have to. The military commander on the West Coast, General John DeWitt, used it to clear the coast of persons of Japanese ancestry.

Congress ratified the order by statute in March 1942, making it a crime to violate military orders in the designated areas. Roughly 120,000 people of Japanese ancestry, nearly 70,000 of them American citizens, were removed from their homes in California, Oregon, Washington and part of Arizona and sent to camps in the interior. They were given days to dispose of their homes, farms and businesses. Most lost most of what they owned.

Notice what the order did not require. No individual was charged with disloyalty. No hearing was held. No evidence of any person's guilt was needed, because the test was ancestry. The citizen of Japanese descent whose family had farmed in California for three generations was excluded on the same basis as a foreign national. There was no individual assessment of loyalty. A man was a danger because of his blood.

That is precisely what the Constitution forbids. The Fifth Amendment says that no person shall "be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment's Citizenship Clause begins: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." A citizen is a citizen, and a government that sorts citizens by ancestry has abandoned the principle on which the republic was founded, the self-evident truth of the Declaration "that all men are created equal."

The man

Fred Korematsu was a young man, a native-born citizen living in San Leandro, California. He did not report for removal. He was arrested and convicted of violating the exclusion order, and his case reached the Supreme Court.

An earlier case had set the stage. In Hirabayashi v. United States (1943) the Court had unanimously upheld a curfew imposed on Japanese Americans on the West Coast, by deferring to the judgment of the military and Congress. The Court avoided ruling on the exclusion and the camps. In Korematsu, the exclusion itself was squarely before it.

The holding

The Court decided Korematsu on December 18, 1944, by a vote of six to three. Justice Hugo Black wrote the majority opinion.

Black began with a sentence that sounds, at first, like a promise: "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect," and courts "must subject them to the most rigid scrutiny." That language is the origin of what lawyers now call strict scrutiny, the most demanding test in constitutional law. Then he did the opposite of what the sentence required.

The majority reasoned in these steps.

1. The exclusion order was not a punishment of any race. Korematsu, Black wrote, "was not excluded from the Military Area because of hostility to him or his race," but because the military authorities feared an invasion and considered that the need for action was great.
2. The Court could not "reject as unfounded" the judgment of the military that there were disloyal members of the group and that there was no time to separate them from the loyal.
3. Hardships are part of war. "Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier."
4. The Court was not deciding the legality of the camps, only the narrow question of the exclusion order, which Korematsu had violated.

The key move is the second one, and it is the one to dwell on. The Court deferred. It accepted the military's account of the danger as a given, without asking for evidence and without testing the claim. The government had produced a report from General DeWitt asserting that Japanese Americans posed a threat. The Court took it at its word.

It was a bad word to take. As the 1983 ruling described below found, the government had misled the Supreme Court, and the Court never heard the full story.

The dissents

Three justices dissented, and the dissents are the reason the case is read today.

Justice Frank Murphy wrote that the exclusion "goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism." He pointed out that the military's justifications looked more like ancestry-based assumptions than facts. He noted that persons of German and Italian ancestry were not removed en masse, which suggested that race, not security, was doing the work.

Justice Owen Roberts dissented on narrower grounds, stressing that Korematsu was being punished for not submitting to detention in a camp, a result of the exclusion order that could not be separated from the rest.

Justice Robert Jackson wrote the most prophetic opinion. Jackson, who would soon take leave from the bench to prosecute at Nuremberg, as Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg recounts, understood that the Court had no business pretending it could judge the military's judgment. But he also saw that it was just as wrong for the Court to put its signature on the order. A military commander can do what he must, Jackson reasoned, and the Constitution will not necessarily stop him. The judiciary, however, is a different matter.

"A military order, however unconstitutional, is not apt to last longer than the military emergency," Jackson wrote. "But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. 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."

Read that last sentence again. A loaded weapon, lying about, ready for the hand of any authority with a plausible claim. Jackson was not saying the military was wicked. He was saying that the Court's blessing converts a one-time wartime act into a standing precedent, and a precedent does not expire when the war does. The order would end. The doctrine would stay.

The same day, a quieter case

On the same day it decided Korematsu, the Court decided Ex parte Endo, holding that the government could not continue to detain a concededly loyal citizen. Mitsuye Endo had been held in a camp after she was cleared. The Court ordered her release.

The two decisions together are a puzzle. The Court said you could exclude loyal citizens from their homes, but you could not hold them in a camp. The distinction is one that only a court trying not to confront the whole thing could make. It does show, though, that the Court knew it was in trouble and chose to do the narrowest thing it could.

The long road back

The correction came slowly, from the bottom up.

• 1982 and 1983. The Commission on Wartime Relocation and Internment of Civilians, which Congress had created, issued its report, Personal Justice Denied. It concluded that the exclusion and detention were not justified by military necessity and traced them to race prejudice, war hysteria and a failure of political leadership.
• 1983. Korematsu filed a petition for a writ of coram nobis, an old remedy for correcting a judgment that rested on a fundamental error or fraud. On November 10, 1983, Judge Marilyn Hall Patel of the federal district court in San Francisco granted it and vacated his conviction, on the finding that the government had misled the Supreme Court. Her written opinion followed in 1984.
• 1988. Congress passed the Civil Liberties Act of 1988, and President Ronald Reagan signed it on August 10. It formally apologized on behalf of the nation and provided $20,000 to each surviving person who had been interned. The government that had done the wrong said so, and paid.
• 2018. In Trump v. Hawaii, the Court upheld a presidential proclamation restricting entry of nationals from certain countries. The dissenters compared it to Korematsu. Chief Justice John Roberts, writing for the majority, took the comparison head on. He wrote that 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.'" The last phrase quoted Justice Jackson's dissent.

Notice the odd shape of the repudiation. Korematsu was never formally overruled in a case that presented the question. It was repudiated in a case that distinguished it. The Court called it wrong and went on to uphold the proclamation before it, on the ground that the proclamation rested on a facially neutral national-security rationale and a statute. The honest point is that the Chief Justice did what courts often do: he cleaned out a bad precedent without making it the center of the decision. Whether the Hawaii result was right is a separate argument, and people of good faith disagree about it. The disavowal of Korematsu stands on its own.

Why it is a lesson about deference

Let me put the lesson as an argument, in numbered points, because the lesson is easy to misstate.

1. The failure was not that the Court respected the political branches. It was that the Court did not test the claim. A court should give weight to the President and Congress on war and foreign affairs. But a court that accepts a factual claim without looking at the evidence is not deferring, it is abdicating. Deference is a judgment about who decides a question. It is not a license to stop thinking.
2. The Court announced the right test and then did not apply it. Black's "most rigid scrutiny" sentence was correct. The majority never made the government prove that a racial exclusion was necessary. The word "necessity" appears in the opinion; the proof does not.
3. The government's account was incomplete, and the Court never asked. The government's misleading of the Court, as Judge Patel found in 1983, went uncaught at the time. That is an argument for adversarial testing of every executive claim, especially in a crisis.
4. A precedent outlives its emergency. This is Jackson's point and the deepest one. The war ended in 1945. The Korematsu doctrine lasted until 2018 as a case the government could cite, and its logic, that a court should not question a wartime claim of necessity, shaped later arguments.
5. The cure is the text. The Constitution already contained the rule that was needed: due process, equal citizenship, and the requirement that an individual be charged and heard. The framers wrote with emergencies in mind. The point of a written constitution is that it binds in the hard cases, not only the easy ones.

The strongest objection

The other side's best argument is that a court in 1944 faced an impossible choice. The country was at war on two oceans. The generals said there was a risk. A judge who overrode them and was then proved wrong, by a landing or a sabotage, would be blamed for it. Courts are not equipped to judge intelligence. The justices who wrote Korematsu were not villains, and Hugo Black, a New Deal liberal, was a man of civil-liberties convictions in other cases. The modern view that the decision was obviously wrong benefits from hindsight.

I grant the force of the first half. Courts are poorly placed to second-guess military operations, and they should be wary of it. But the objection proves too little. The question in Korematsu was not a battlefield tactic. It was whether the government could remove American citizens from their homes, on the basis of ancestry, with no individual hearing. That is a question of law, and law is precisely what courts exist to decide. And the "hindsight" defense fails because contemporaries did see it. Murphy, Roberts and Jackson saw it in 1944, with the same facts on the table. The facts were known to the government. The failure was one of nerve and of curiosity, not of information.

What the conservative should take from it

Conservatives are often the ones who invoke national security. The party of strong defense should be the first to understand the cost of a precedent that treats security claims as self-proving. A government that can exclude a class of citizens on its own say-so can do worse tomorrow, and the people who hold power are never the same people for long.

That is why the right posture toward the executive is the Founders' posture, trust but verify. It is also why the doctrines that restrain executive power, such as the limits on delegation and the independence of courts, are conservative doctrines at root. For the case against excess judicial deference and judicial overreach alike, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not. And for the longer list of decisions the Court later disavowed, see From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule and Five Supreme Court Dissents That Later Became the Law of the Land. Jackson's dissent in Korematsu belongs on that second list, though it took until 2018 for a majority to say so.

Korematsu is also a companion to the case of Debs, where the question was the same: how far may the national government go when it says there is an emergency? Read In re Debs and the 1894 Pullman Strike That Made the Labor Injunction next to this one.

The case in brief

1. Executive Order 9066 and the exclusion orders removed about 120,000 people of Japanese ancestry, nearly 70,000 of them citizens, from the West Coast without individual hearings.
2. In Korematsu (1944) the Court upheld the exclusion six to three, announcing strict scrutiny and then deferring to a military claim it never tested.
3. Murphy, Roberts and Jackson dissented, and Jackson's warning that the ruling would lie about "like a loaded weapon" is the lasting lesson.
4. The correction came from the commission's report, the 1983 coram nobis ruling, the Civil Liberties Act of 1988 and Chief Justice Roberts's statement in 2018.
5. The danger is not courts respecting the other branches, but courts accepting claims of necessity without testing them, and the Constitution's text already gives the remedy.

What you can do: read Justice Jackson's Korematsu dissent in full, which is short and free online, and the next time a public official says an emergency justifies setting aside a right, ask what evidence has been put before a court.