January 21, 2014

Will one of the Supreme Court's worst decisions finally be overruled?

By Jonathan Wood Attorney

In 1944, the Supreme Court — in one of its most widely-condemned decisions — shamefully upheld the constitutionality of the internment of Japanese-Americans across the West Coast. It did so paying lip service to the Constitution’s deep distrust of government treating people differently on the basis of race. And its reasoning was equally disturbing:

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

The Supreme Court embraced the government’s argument that an entire group of people can be presumed disloyal and mistreated just because of their ethnicity.

The saga became a bit more sordid a few years ago when the Solicitor General’s office confessed error, acknowledging that the office had knowingly withheld information from the Court undermining its rationale. According to a letter from the then-acting Solicitor General:

By the time the cases … reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. … And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

The Supreme Court has been presented with an opportunity to revisit — and repudiate — this decision. In Hedges v. Obama, a case concerning the President’s authority to indefinitely detain American citizens, one of the questions presented is whether Korematsu is good law. The attorneys for Korematsu and others who challenged their unconstitutional internment have sent a letter to the Solicitor General asking him to request that the Court repudiate the decision, or at least not defend it as good law. Hopefully, the Solicitor General and the Court will take this opportunity to rid the law of what Justice Robert Jackson described as a “principle [that] lies about like a loaded weapon, ready for the hand of any authority that can bring a claim of an urgent need.”

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