Richard Wolf, USA TODAY
WASHINGTON — Karen Korematsu had planned to be inside the Supreme Court Tuesday "to witness history" — or, in her case, to relive it.
Her father, Fred Korematsu, was one of three young men who challenged President Franklin Roosevelt's Executive Order 9066 in 1942 authorizing the forced removal and incarceration of some 120,000 West Coast residents of Japanese ancestry. Korematsu lost his case at the Supreme Court in a 6-3 decision that dissenting Justice Robert Jackson called “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
President Trump's ban on travelers from predominantly Muslim countries in the name of national security represents just such a claim, Karen Korematsu says. The ban had a date with the Supreme Court for Tuesday that's been canceled for now, but she says it will be back — and so will she.
"I haven't given up hope," Korematsu, 67, said recently during an interview at the Japanese American Memorial to Patriotism During World War II, a peaceful oasis just blocks from the U.S. Capitol. "My father waited 40 years for justice."
So did Gordon Hirabayashi and Minoru Yasui. the other two men who defied FDR's order but failed to convince the Supreme Court. In the 1980s, their criminal records were thrown out following revelations that the government had lied after the 1941 attack on Pearl Harbor about Japanese Americans' disloyalty and espionage.
Their fathers are dead now, but Karen Korematsu, Holly Yasui and Jay Hirabayashi want the justices to avoid a decision they say would repeat the same mistakes of the 1940s: broad-brush discrimination and abdication of judicial oversight in the name of national security.
More than 80 legal briefs have been filed in the case, far more than the justices are likely to read in full. But the Korematsu brief likely has caught the justices' attention by reminding them of rulings long since discredited.
“Clearly it was an issue of ‘racial prejudice, wartime hysteria and a failure of political leadership,’” Holly Yasui said, quoting from a federal commission's 1983 report that found the relocation and internment of Japanese Americans was unjustified. She said the same thing is true when it comes to Muslims today because "we haven't learned the lesson that the Japanese American internment gave to us.”
Not everyone agrees the two situations are comparable. While Roosevelt's executive order did not mention Japanese Americans specifically, the military orders implementing it targeted "persons of Japanese ancestry," while the Trump ban does not mention Muslims at all. In addition, most of the Japanese Americans were U.S. citizens living in the country, not foreigners.
"The standards of constitutional scrutiny for persons inside the United States (citizen or not) are completely different from the rules for non-citizens outside the United States," conservative blogger Josh Blackman, an associate professor at South Texas College of Law, wrote recently.