By Jeffrey H. Barker
Between President Trump’s executive order barring anyone from seven majority-Muslim countries from the United States and his nomination of Neil Gorsuch to the U.S. Supreme Court, a milestone passed that few noticed. Fred Korematsu, who died in 2005, would have celebrated his 98th birthday. Fred Korematsu has an important connection to both of these presidential decisions, and it is one that needs to be considered by the Senate and the Court as they make their respective decisions on whether to confirm Judge Gorsuch and whether to allow the immigration ban to stand.
In 1942, President Franklin Roosevelt signed an executive order that led to the imprisonment of over 120,000 Americans of Japanese descent in “internment” – that is, concentration – camps here in the United States. Most prisoners were American citizens; all were imprisoned because they were racial descendants of Japanese, not because they were disloyal to the U.S. or convicted agents of the Japanese empire.
Fred Korematsu, an American-born citizen, had tried to enlist in the U.S. military after Pearl Harbor but was rejected—because of his ancestry. When ordered to report for imprisonment he refused, and was convicted of violating the order and sent to an internment camp in Utah. He appealed his case to the Supreme Court, which ruled 6-3 in Korematsu v. United States that the executive order was justified by “military necessity” – that is national security. Justice Robert Jackson, one of three dissenters, wrote that the Court had “for all time…validated the principle of racial discrimination … 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.”
Korematsu’s conviction was vacated in 1983. He told the judge: “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed or color.”
He did not get his wish. Justice Jackson was right – the Korematsu decision itself, unlike the individual conviction, has never been overturned and still “lies about like a loaded weapon.”
That weapon was raised in President Trump’s claim of national security in banning entry from Muslim-majority countries. While the administration claims the ban is not based in religious bigotry, the words of the president and his closest advisers prove otherwise. During his campaign, Trump called for a complete ban on Muslims entering the United States. The order provides possible exceptions for refugees who are members of religious minorities – that is, not Muslims. It is clear that the order targets Muslims.
When Judge Sonia Sotomayor appeared as a nominee to the Supreme Court in 2009, senators asked her about the Korematsu case. Previous nominees, including now-Chief Justice John Roberts and Justices Alito, Breyer, and even the very conservative Scalia had all rejected the bigotry of Korematsu.
Senator Lindsey Graham asked Judge Sotomayor, “Does a judge have a duty to resist the kind of wartime fears that people understandably felt during World War II which likely played a role in the 1944 Korematsu decision?” She replied: “A judge should never rule from fear. A judge should rule from law and the Constitution.”
She was echoing what Chief Justice Roberts had said in his own confirmation hearings. Told by Senator Patrick Leahy, “I just want to make sure you’re not going to be a Korematsu justice,” Roberts replied, “I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.”
The Chief Justice is about to be surprised. A “case like that” is likely to come before the Court very soon.
We clearly have a Korematsu president. Explaining the ban, he said, “What I’m doing is no different than FDR.” When Judge Gorsuch appears before the Senate Judiciary Committee as part of his Supreme Court confirmation process, he should be asked whether he is “going to be a Korematsu justice.”
Judge Gorsuch has cited Justice Scalia and Justice Jackson as sources of inspiration. He should be asked if he meant that. And, if some version of Trump’s order makes its way to the Supreme Court, we should all remind the Chief Justice and the Associate Justices of what they said in their own confirmation hearings and elsewhere. We should remind them that “a justice should never rule from fear.”
Perhaps the ghost of Fred Korematsu will get his wish after all.
Barker is the provost of Converse College. Email: firstname.lastname@example.org