By Erick Trickey
On Memorial Day 1942, Fred Korematsu was walking down a street in San Leandro, California, with his girlfriend when police arrested him on suspicion that he was Japanese.
Three weeks earlier, the U.S. Army had ordered “all persons of Japanese ancestry” out of the Bay Area part of California. The military was rounding up every Japanese-American and Japanese immigrant on the West Coast—110,000 people, most of them American citizens—and putting them in concentration camps. One of the worst civil liberties violations in American history, it was authorized by President Franklin D. Roosevelt’s Executive Order 9066 of February 19, 1942.
But Korematsu, a 23-year-old welder born in Oakland to Japanese immigrant parents, refused to comply with the order. His defiance led to a historic test of liberty and an infamous Supreme Court precedent that still looms over American law today.
At San Leandro police headquarters, Korematsu told the police that his name was Clyde Sarah, and that his parents, of Spanish and Hawaiian ancestry, had died in a fire. But his story broke down when a police lieutenant noticed that his draft card looked altered. Eventually Korematsu gave the policeman his real name and told him his family was Japanese and in a relocation camp.
“I stayed in Oakland to earn enough money to take my girl with me to the [Midwest],” Korematsu told an FBI agent, according to an affidavit he signed. That way, he thought, he could live freely and not be concerned with being sent to a camp. Questioned about scars on his nose and forehead, he said he’d undergone plastic surgery with the goal of “changing my appearance so that I would not be subject to ostracism when my girl and I went East.” FBI interviews with his girlfriend and surgeon confirmed the essentials of his story. The surgery was minor – Korematsu later said the surgeon just fixed his broken nose, and didn’t alter his eyelids as promised. But prosecutors and the press would stress the detail.
“3 Japanese Defy Curbs: Army Says One Tried to Become ‘Spaniard’ by Plastic Surgery,” read a brief in the June 13 New York Times. Local newspapers also announced Korematsu’s arrest: “San Leandro Jap Held As Evader of Ouster Order,” “Oakland Jap Held for FBI.” Ernest Besig, executive director of the San Francisco office of the American Civil Liberties Union, saw the stories and went to see Korematsu in jail. Would he be willing, despite long odds, to challenge his arrest all the way to the U.S. Supreme Court? Korematsu said yes.
Though Korematsu had resisted the Japanese incarceration as a loner at first, his passionate belief in liberty and the lessons in American ideals he’d learned in school motivated him to fight the charges. His family, like nearly every other person of Japanese ancestry in California, had followed a series of military orders that forbade them to travel, except to turn themselves in at assembly centers, where they faced removal to a relocation camp. Because Korematsu had stayed behind, he was transferred to military custody at the Presidio in San Francisco and charged with violating a recently passed federal law that made it a crime to ignore a military relocation order.
His resolve grew after military police moved him to the Tanforan assembly center, a former racetrack where the Army held 7,800 people, including his parents and three brothers, in detention. The camp’s overseers assigned Korematsu to live in a horse stall with a cot, a straw mattress and one light bulb hanging down. The camp, he decided, was worse than jail.
“These camps [are] definitely an imprisonment under armed guard with orders [to] shoot to kill,” Korematsu wrote in a note to his lawyer. “These people should have been given a fair trial in order that they may defend their loyalty at court in a democratic way.”
Korematsu tried to do just that at his trial in federal court in San Francisco in September 1942. “As a citizen of the United States I am ready, willing, and able to bear arms for this country,” he said. He testified that he had registered for the draft and tried to volunteer for the Navy, that he had never been to Japan, couldn’t read Japanese, and spoke it poorly. Still, the judge found Korematsu guilty of violating the removal order, sentenced him to five years probation, and allowed a military policeman to take him back to camp.
There, almost no one supported Korematsu’s decision to fight detention. His father scolded him for getting in trouble, and his mother and brothers were ashamed he’d been arrested, according to Enduring Conviction, Lorraine K. Bannai’s 2015 biography of Korematsu. The loneliness of his stand reflects the extraordinary pressures on the intimidated internees. “Many Nisei [Japanese-Americans] believed that they would prove their patriotism by complying,” Bannai wrote. Researchers from UCLA have gathered stories that offer a counter-narrative, one of resistance and insubordination in the camps, from acts of civil disobedience to coordinated uprisings.
Arrest and internment also cost Korematsu his Italian-American girlfriend, Ida Boitano. Before Pearl Harbor, they’d hoped to marry. After his arrest, police warned Boitano to cut ties with him. Conflicted and afraid, she sent Korematsu a few letters, but then asked him to stop writing. “I happen to be Italian and this is war,” Boitano wrote to Korematsu’s lawyer, “so we must both be careful.” (About 3,000 Italian immigrants and Italian-Americans were also detained during World War II.) Korematsu never saw Boitano again.
As his lawyers took Korematsu’s case to the federal court of appeals, the Army moved the internees to more permanent camps. Korematsu and his family were sent to the Topaz relocation center in Utah. The camp was surrounded by barbed wire, and military police armed with rifles were stationed atop lookout towers. The Korematsus, a family of six adults, were assigned to two small barracks rooms. They wore masks to avoiding breathing dust kicked up by desert winds. Korematsu dug a well, moved drywall, and worked in the camp hospital’s warehouse for $12 a month.
Starting in November 1942, the government gave him temporary leave to live and work outside the camp, a partial freedom granted to many younger internees of working age. Korematsu picked sugar beets, worked at a construction company, and got a welding job in Salt Lake City. “I don’t even know how it is to have a home,” Korematsu wrote his lawyer. “I feel like an orphan or something.” In January 1944, the government gave Korematsu indefinite leave from the camp.
Meanwhile, in December 1943, the federal appeals court upheld Korematsu’s conviction, ruling the military orders were constitutional. He was living at a Detroit YMCA and working in construction when his lawyers argued his case before the Supreme Court in October 1944.
On December 18, 1944, in a 6-3 decision, the Supreme Court upheld Korematsu’s conviction. “Korematsu was not excluded from the Military Area” – the West Coast -- “because of hostility to him or his race,” Justice Hugo Black wrote in the majority opinion, but because of “military dangers” and “military urgency”—fear that people of Japanese ancestry would carry out sabotage during a Japanese invasion of the West Coast.
Three justices wrote alarmed dissents. “The Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens,” wrote Justice Robert H. Jackson. “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.”
Criticism of the court’s decision was swift. “Legalized Racism,” read the headline of the Washington Post editorial. A columnist in the Pittsburgh Courier, a leading black newspaper, compared Korematsu to Dred Scott, American history’s best-known victim of court-sanctioned prejudice. But the public felt differently. In a December 1942 Gallup poll, only 35 percent of Americans had agreed that "the Japanese who were moved inland from the Pacific coast should be allowed to return" after the war. Most who responded "no" wanted the internees deported.
Two weeks after the decision, the Roosevelt administration began to release a screened group of Japanese-Americans. Korematsu’s parents returned to Oakland in May 1945 to find their flower nursery in shambles, neglected by tenants. Thousands of detainees, who felt they had nowhere to go or feared returning to the hostile West Coast, stayed in the camps until the last of them closed in May 1946.
Korematsu married, had kids, moved back to California in 1949, and worked as a drafter, though his job prospects were always limited by his criminal conviction. For decades, he found his memories of the case painful and rarely spoke of it. His children learned about in high school history class. But in 1981, a researcher uncovered evidence that the U.S. government had presented false information to the Supreme Court in Korematsu’s case while also suppressing intelligence findings about Japanese-Americans’ loyalty to the country. Korematsu returned to federal court, seeking vindication. In 1983, a federal judge threw out his conviction.
Korematsu became a civil-rights activist, lobbying Congress to pass the Civil Liberties Act of 1988, which gave compensation and an apology to former wartime detainees. He was awarded the Presidential Medal of Freedom in 1998. Before his 2005 death, he filed a court brief supporting the rights of Guantanamo Bay detainees before the U.S. Supreme Court. In 2010, California made his birthday, January 30, Fred Korematsu Day of Civil Liberties and the Constitution.
Today, Korematsu v. U.S. is often described as one of the Supreme Court’s worst precedents. Widely rejected but never overturned, it is part of an anti-canon that legalized discrimination, along with Dred Scott v. Sandford, Plessy v. Ferguson, and Buck v. Bell. Justice Stephen Breyer, in a 2010 book, called the decision “thoroughly discredited.”
In 2014, the late Justice Antonin Scalia denounced the decision, but issued a warning. “[Korematsu v. U.S.] was wrong,” he told law students in Hawaii. “But you are kidding yourself if you think the same thing will not happen again….I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality.”
This past November, Carl Higbie, spokesman for a super-PAC that supported Donald Trump’s election, argued on FOX News that the Japanese internment of 1942 sets a constitutional precedent for a proposed registry of Muslim immigrants. Higbie’s comment drew widespread condemnation—but also warnings that the Korematsu decision still lies in a dark corner of American law. Discarded and disdained but not disarmed, the gun that Justice Jackson warned about could be fired again.