Making Our Democracy Work

by Breyer, Stephen

  The War Department and others in the Justice Department strongly objected to the draft footnote. Eventually, the assistant attorney general for war, Herbert Wechsler, drafted a compromise, which appeared in the final brief. It said: “We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice; and we rely upon the Final Report [of DeWitt] only to the extent that it relates to such facts.” The lawyers reluctantly agreed to the compromise and signed the brief.39

  While the department was preparing to defend the relocation in the Supreme Court, internment itself was drawing to a close. The War Department had recognized DeWitt’s hostility to Japanese-Americans (he had once told officials there “isn’t such a thing as a loyal Japanese”) and had replaced him with successors who thought that camp internment should end. The threat of invasion had long since passed. Whatever screening could be done had been done. The War Relocation Authority saw no reason to prolong internment, and the Justice Department, too, wished to end it. California’s political officials, however, recognizing the unpopularity of the Japanese-Americans’ return, favored continued internment. The president seemed to agree, reportedly stating in May 1944 that he thought it would be a mistake to do anything “drastic or sudden,” at least until after the 1944 election.40

  Regardless, the Court had set Korematsu for argument. Along with Korematsu, the Court had agreed to hear the case of Mitsuye Endo. Endo, an American citizen who had worked for the State of California, had been taken into custody and sent to a relocation camp. In July 1942 she filed a habeas corpus petition in the federal district court in San Francisco arguing directly that her continued confinement in a camp was unconstitutional and requesting release. The War Relocation Authority considered her loyal and offered to release her if she would promise not to return to California. She refused to promise and pursued her request for judicial relief, but the lower courts denied her request.41

  WHAT COULD THE government argue in the Supreme Court? Its claim that military necessity justified the original internment had been weakened if not destroyed. Internment itself was on its last legs, perhaps over. The government’s Korematsu brief therefore relied heavily on the fact that Korematsu’s conviction rested on his violation not of an internment order but of an exclusion order that required him to stay on the West Coast while leaving all parts of the West Coast except Tanforan Racetrack, a relocation assembly area. The government added that Korematsu, like Hirabayashi (who had violated the curfew order), had been convicted simply of being in a place where he had no right to be at the time. The government still defended the internment program but emphasized what had previously been a subsidiary point, namely, that the program was lawful as a measure to “alleviate tension and prevent incidents involving violence between Japanese migrants and others.”42

  In Endo’s case, the government virtually conceded that the War Relocation Authority could not detain loyal American citizens of Japanese ancestry beyond a period necessary to screen them for loyalty. But it added that Endo had to comply with the authority’s leave policy—that is, promise not to return to California—before she could be released.43

  On Korematsu’s side of the case, the ACLU, represented by Charles Horsky, pointed to the government’s footnote, which Horsky called “extraordinary.” He said the footnote effectively disavowed DeWitt’s security-based claims of military necessity. The Japanese American Citizens League supported Korematsu by filing a two-hundred-page brief referring to numerous scholarly studies that undermined claims of Japanese-American race-based or culture-based tendencies toward disloyalty.44

  THE DECISIONS

  ON DECEMBER 18, 1944, the Court released its Korematsu and Endo decisions. By a vote of 6 to 3, the Court upheld Korematsu’s conviction; at the same time, it unanimously ordered Endo’s release. Justice Black wrote the Korematsu majority’s brief opinion accepting the government’s claim that it should not consider the lawfulness of Fred Korematsu’s detention in a relocation camp. The Court, it said, had to decide only whether the government could order Korematsu excluded from the West Coast, in effect forcing him to report to an assembly center. The Court held that the government could do so. It wrote that the exclusion order sufficiently resembled the curfew order that the Court in Hirabayashi had already upheld as lawful.45

  The Court recognized that “exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m.” But “exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage.” Moreover, in Hirabayashi the Court accepted the military’s finding that it was “impossible to bring about an immediate segregation of the disloyal from the loyal.” The military based its “temporary exclusion” order here “on the same ground.” Ultimately, the Court wrote, the “properly constituted military authorities” had found that the “urgency” of the situation “demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.” And 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, … we cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.”46

  Justice Frankfurter wrote a concurring opinion repeating what he had said in Hirabayashi, namely, that the Court should determine whether the orders were “ ‘reasonably expedient military precautions’ in time of war.” He concluded that they were.47

  Three justices filed dissenting opinions. Justice Roberts’s opinion, in concluding that the exclusion orders were unconstitutional, undermined the majority’s claim that the lawfulness of Korematsu’s confinement was not before the Court. Justice Roberts pointed out that DeWitt’s two March 1942 orders, taken together, required Korematsu both not to leave the West Coast and not to remain anywhere on the West Coast except for assembly centers, such as Tanforan Racetrack. What is that, asked Roberts, but “confinement” at a detention center, a “euphemism for a prison,” from which no person was “permitted to leave except by Military Order”? In any event, had Korematsu reported to the assembly center, he would have been “removed to a Relocation Center,” which Justice Roberts said was “a euphemism” for concentration camps.48

  Justice Murphy examined the orders and found they had no adequate factual foundation. First, as explained in DeWitt’s final report, they were based on a host of “questionable racial and sociological grounds not ordinarily within the realm of expert military judgment.” Murphy said there was no evidence of “subversive activities,” “teachings,” and the like. He added that “every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.” He supported his conclusion with a series of footnotes that refer to studies about attendance at Japanese-language schools, dual citizenship, integration into American society, and religious practices. Murphy said that a “military judgment” to the contrary must rest on “racial and sociological” pieces of “misinformation, half-truths and insinuations” and did not warrant “the great weight ordinarily given the judgments based upon strictly military considerations.”49

  Second, Murphy said, the report did not clearly charge and did not prove that people of Japanese ancestry were responsible for “radio transmission,” “night signaling,” or three “minor isolated shellings.” Third, the report nowhere described or verified any individual incident of hostility to Japanese-Americans that might justify removal for their own safety. Regardless, the “dangerous doctrine of protective custody” should not stand as “an excuse for the deprivation of the rights of minority groups.” Fourth, the government did not explain why it could not treat these Japanese-Americans on an “individual basis,” screening them for loyalty, as the British had
done.50

  Finally, Murphy wrote, there was no reason to think that the FBI and intelligence services “did not have the espionage and sabotage situation well in hand.” After all, “not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free.”51

  Justice Jackson also filed a dissent arguing that the Court could not possibly know whether relocation was justified in early 1942. The case, he said, showed the “limitation under which courts always will labor in examining the necessity for a military order.” How, he asked, “does the Court know that these orders have a reasonable basis in necessity?” In “the very nature of things military decisions are not susceptible of intelligent judicial appraisal.” The Court had “no real evidence before it.” No “evidence whatever” as to need “has been taken by this or any other court.” Thus the Court had “no choice but to accept General DeWitt’s own unsworn, self-serving statement … that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.” Hence, the Court was wrong to apply a standard that would consider whether “reasonable military grounds” supported the orders, for any such standard was inevitably meaningless in practice.52

  Jackson’s solution: Courts should not try to assess an order’s reasonableness. They should instead simply refuse to enforce “an order which violates constitutional limitations” regardless. That refusal will not hurt the military effort, for any emergency that led to the military order would likely be over before a court could refuse to enforce the order. Moreover, the alternative, judicial acceptance of the order, would create a terrible precedent “that [would] lie[] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”53

  Justice Jackson thus recommended what seems like a highly pragmatic approach: recognizing that generals may well act unconstitutionally when faced with an emergency, courts must later strike down their actions as unconstitutional, but only after the emergency has passed.

  LESSONS

  TO ITS LONG-lasting shame, the Court upheld exclusion orders based on racial and cultural stereotypes, which removed tens of thousands of American citizens from their homes and interned them in camps. The orders did not come accompanied with any system for individual loyalty screening. Nor could they be justified in terms of military necessity. Yet the Court held that these orders did not deprive these citizens of their “liberty … without due process of law.” And, as Justice Jackson pointed out, the Court’s holding came at a time when all military justification for the internment had vanished. The government was ready to free the Japanese-Americans regardless.54

  Of course, the Court did order Endo released from confinement. But students of history do not think that Endo counterbalances Korematsu. The Court in Endo based its decision not on the Constitution but on statutes and regulations. It said the statutes and regulations that authorized the orders requiring Korematsu to report to a relocation center did not encompass later internment. It did not discuss whether the Constitution forbids internment. Hence, considering the two decisions together, the Court held that the Constitution permits Korematsu’s confinement while leaving unanswered the question of the Constitution’s relation to later internment.55

  Why did the Court reach its Korematsu conclusion? The justices in the majority—many of whom were later part of the Court’s unanimous Brown v. Board of Education decision—were not sympathetic to race-based decision making. Nor were they unsympathetic to claims for protection of individual liberty. The Frankfurter/Jackson dialogue suggests a better answer: The Court decided as it did because it could not find a way to protect individual liberties from invasion by the president without at the same time taking from the president discretionary powers that the war might require him to exercise.

  Although the tension between Court and president is real, Justice Frankfurter’s solution was not tenable. He wrote that military actions, if reasonable, do not violate the Constitution. Under that view, the Constitution grants the president broad authority to run the war. As Justices Jackson and Murphy observed, however, the Court cannot easily know what is reasonable. Furthermore, if the standard leads to a holding that Korematsu’s forced relocation is lawful, then what is not? What constraint does it impose? As applied in Korematsu, Frankfurter’s standard becomes essentially a license for the president to act virtually as he sees fit. The majority said that “legal restrictions which curtail the civil rights of a single racial group … are subject … to the most rigid scrutiny,” but its actual ruling suggested the contrary.56

  Justice Jackson’s approach also suffers serious shortcomings. He argued that the military will act as it believes necessary and the Court can later strike down any actions that exceed ordinary constitutional limits. That approach seems both too broad and too narrow. It is too broad because its very realism suggests that the nation may well have to rely on its military taking unconstitutional actions to save the nation from invasion or destruction. That approach runs the danger of the military’s and the president’s taking the Court’s statement itself as a permission to exercise wartime judgment as they wish and consequently exercising it in too broad a fashion. Furthermore, the statement, by encouraging the military or the president not to follow the Constitution (as the Court interprets it), undermines the very habits and customs needed to give the Constitution’s promises practical effect. The approach is too narrow because its adoption of strict constitutional standards may sometimes stop a president or his advisers from taking actions they correctly conclude are necessary to save the nation. The president would obey the Court’s constitutional interpretation at great peril to the nation. The Constitution, as Jackson later wrote, is not a “suicide pact.”57

  Justice Murphy, though right about the Korematsu case itself, did not offer a generally workable solution, for he did not directly consider the problem that concerned Frankfurter and the majority: How are courts to decide whether military orders are or are not reasonable? Murphy’s approach of examining the factual underpinnings of the military orders threatened to enmesh the Court in case-by-case review of individual military orders—including orders issued in emergency circumstances. How would the Court decide future cases? Would military commanders fear that they needed legal advice and that they had to build court-type records before reaching military decisions? Perhaps fearing these consequences, the Court in effect chose to avoid this responsibility and defer to the president. The Court implicitly asked who has the ability and constitutional responsibility to manage a war—the Court or the president? This is certainly the question that Frankfurter addressed. If this is the question, the answer must be the president.

  Might the Court have found a workable way to hold the president constitutionally accountable? Perhaps it could have developed a sliding scale in respect to the length of detention and the intensity of its examination of the circumstances. Perhaps it could have insisted that the government increase screening efforts the longer an individual is held in detention. Perhaps it could have required the government to have had in place from the beginning a plan for future screening. Perhaps it could have deemed critical the fact that the relocation was imposed within the United States itself during a period not of martial law but when ordinary civilian courts were fully operative. Perhaps, by focusing directly on these or similar possibilities, the Court might have written a legal rule that structured judicial review of military actions—ideally a rule that steered between burdensome, case-by-case judicial review and no review at all.

  As it was, the Court majority understood the danger of excessive judicial interference in military affairs, but it did not satisfactorily address the problem of insufficient judicial involvement. If it had focused on the latter problem—telling the president even in wartime that the sky is not the limit—it might have found a way to maintain presidential accountability without undermining the president’s need for broad discretion
ary wartime powers. Its mistake was focusing too heavily on the former.

  WHAT HARM DID the Korematsu decision actually cause? The decision itself hurt the interned Japanese by validating their internment. It also affirmed Fred Korematsu’s criminal conviction. The War Relocation Authority mitigated the harm to some degree when, the day before the Court announced its Korematsu and Endo decisions, it stated with unconscious irony that as of January 2, 1945, all “persons of Japanese ancestry whose records have stood the test of Army scrutiny” would be “permitted the same freedom of movement throughout the United States as other loyal citizens and law-abiding aliens.”58

  Fred Korematsu returned to the Bay Area, where he became a successful engineer and landscape architect. Eventually, a federal district court in San Francisco voided his original conviction. And the nation apologized, and in 1988 provided some monetary compensation, to those whom it had interned.59

  History did not bear out Justice Jackson’s prediction that the decision would create a bad legal precedent, a precedent that would lie in wait “like a loaded weapon” waiting to justify a future abusive act. The decision has been so thoroughly discredited that it is hard to conceive of any future Court referring to it favorably or relying on it. Korematsu’s impact as precedent likely consists of what it failed to do: make clear that there are at least some actions that the Constitution forbids presidents and their military delegates to take, even in wartime.60