KOREMATSU V.

UNITED STATES:
A CASE THAT WILL LIVE IN INFAMY
by JUDGE KIRK H. NAKAMURA

I
n 1998 President Bill Clinton awarded Fred Korematsu the Presidential Medal of
Freedom, the highest civilian award given by our government. President Clinton com-
mended him for taking “an extraordinary stand,” stating: “In the long history of our
country’s constant search for justice, some names of ordinary citizens stand for mil-
lions of souls,” Clinton said. “Plessy, Brown, Parks—to that distinguished list, today
we add the name of Fred Korematsu.”
The case of Korematsu v. United States, 323 U.S. 214 (1944), stands as one of the most
criticized decisions in U.S. legal history. Its justification of the internment of over 110,000
Japanese Americans on facts tenuously demonstrating “military necessity” has been criti-
cized as both legally unsound and factually unsupportable. In 1981, U.S. District Court
Judge Marilyn Hall Patel vacated Fred Korematsu’s conviction on a writ of corum nobis
based on her findings of misconduct on the part of the solicitor general’s office in its brief-
ing of the case. Judge Patel found that the government improperly withheld evidence that
demonstrated Japanese Americans did not pose a threat to the nation’s security.
Judge Patel’s ruling led to an unprecedented apology on the part of then acting Solicitor
General Neal Katyal for suppression of evidence on the part of his predecessor, Solicitor
General Fahy, who had argued the initial Korematsu case on behalf of the government.

26 ORANGE COUNTY LAWYER

www.ocbar.org JANUARY 2018 27
The Order for Internment of Japanese
Americans
In the aftermath of the Pearl Harbor attack
on December 7, 1941 President Franklin
G. Roosevelt yielded to public pressure and
signed Executive Order 9066. On February
19, 1942, the president promulgated Execu-
tive Order No. 9066. The Order recited that:
[T]he successful prosecution of the
war requires every possible protection
against espionage and against sabotage
to national defense material, national
defense premises, and national defense
utilities . . . . [Further, it is authorized]
the Secretary of War, and the Mili-
tary Commanders whom he may from
time to time designate . . . [may] pre-
scribe military areas in such places and
of such extent as he or the appropriate
Military Commander may determine,
from which any or all persons may be
excluded, and with respect to which, the
right of any person to enter, remain in, or
leave shall be subject to whatever restric-
tions the Secretary of War or the appro-
priate Military Commander may impose
in his discretion.
On February 20, 1942, the Secretary of
War designated Lt. General J. L. DeWitt as
Military Commander of the Western Defense
Command, which was mostly comprised of
the Pacific Coast states, to carry out the duties
prescribed by Executive Order No. 9066.
General DeWitt ultimately issued proclama-
tions on curfew and movement of Japanese
Americans on the West Coast mainland of
the United States. Ultimately, General DeWitt
issued a series of proclamations which resulted
in the relocation of over 110,000 Japanese
Americans on the West Coast mainland of the
United States. Central to the justification for
the order was General Dewitt’s Final Report,
which concluded that there was evidence of
Japanese American espionage, including radio
transmissions to Japanese naval ships. Not
generally known was that the Federal Bureau
of Investigation (FBI), the Federal Communi-
cations Commission (FCC), and reports from
the Office of Naval Intelligence disputed the
findings of the report.
Later, the U.S. Congress, at the request of
General DeWitt, gave the General’s proclama-
tions the force of law and criminalized disobe-
dience of these orders under Public Law 504.
Fred Korematsu defied an order requir-
ing that he report to an assembly center in
preparation for internment. He was arrested
and convicted for his actions. His conviction
was appealed through the courts. Ultimately,
the case found its way to the United States
Supreme Court.
28
The Four Cases Challenging the
Internment
Fred Korematsu was one of four litigants
disputing the various orders of General
DeWitt, along with Gordon Hirabayashi,
Minoru Yasui, and Mitsuye Endo.
In an act of civil (and criminal) disobedi-
ence, Gordon Hirabayashi wilfully defied
the proclamations designating a curfew for
Japanese Americans and requiring Japanese
Americans to stay in their homes before their
relocation. He was arrested and convicted
under the statutes criminalizing such behavior.
Similarly, Minoru Yasui defied the gen-
eral’s curfew order. He was an attorney in
Oregon and was formerly a second lieutenant
in the United States Army, Infantry Reserve.
He’d been employed by the Japanese Consul-
ate in Chicago, but had immediately resigned
the day after the Pearl Harbor attack. He had
discussed with an agent of the FBI the advis-
ability of testing the constitutionality of the
curfew, and whether, when he violated the
curfew order, he could be arrested so that he
could test its constitutionality. He was ulti-
mately convicted for violating the curfew law.
Mitsuye Endo was an American citizen
who had previously worked for the govern-
ment (the California Department of Motor
Vehicles) and did not speak Japanese. She was
thought to be an ideal litigant to challenge the
internment order. She was persuaded to file
a writ of habeas corpus seeking her freedom
from imprisonment in an internment center.
Like Hirabayashi, Fred Korematsu also
defied the internment and reporting order. He
fled, attempting to change his facial character-
istics with plastic surgery. Nevertheless, he was
located, arrested, and convicted.
The government moved to sever the Hira-
bayshi and Yasui cases from the Korematsu
and Endo cases. This motion was granted.
The move allowed the court to address only
the curfew issue that was involved in these
two cases without dealing with the more
troubling case of the internment of conced-
edly loyal American citizens. Moreover, the
facts of Mitsuye Endo’s writ of habeas corpus
were overwhelmingly compelling. Endo’s case
was so strong that the government’s lawyers
attempted to have her accept a leave from her
relocation center, which would have made her
case moot. (She refused.)
The Hirabayshi/Yasui Decisions: “Any
Substantial Basis”
In June of 1943 Chief Justice Stone wrote
the unanimous decisions for the Court in
both the Hirabayashi and Yasui cases.
The Court issued its opinion in Hira-
bayashi first. The Court held that the gener-
al’s proclamations under the Executive Order
and Congress’s criminalization statutes were
constitutional as a part of the president’s war
powers. Justice Stone’s legal standard in deter-
mining whether the actions of the president,
military, and Congress were constitutional
was extremely deferential: the standard of
any substantial basis. Justice Stone wrote:
[O]ur inquiry must be whether in the
light of all the facts and circumstances
there was any substantial basis for the
conclusion, in which Congress and
the military commander united, that
the curfew as applied was a protective
measure necessary to meet the threat
of sabotage and espionage which would
substantially affect the war effort . . . .
The Court found “substantial basis” in the
exigent circumstances after the Pearl Har-
bor attack, and suggested that the military’s
conclusion that Japanese Americans posed
a threat to the United States Western States
pointed to the fact that many Japanese Amer-
icans attended Japanese language schools
(which supposedly indoctrinated them) and
held dual citizenship. Perhaps most appall-
ing, the high court found that the history of
legal and social discrimination against Japa-
nese Americans was so lengthy and pervasive
that it prevented assimilation into the general
population, which was used to conclude that
their loyalty was suspect. As stated in foot-
note 4 of the Hirabayashi opinion:
Federal legislation has denied to the
Japanese citizenship by naturalization
(R.S. § 2169; 8 U.S.C. § 703; see Ozawa
v. United States, 260 U. S. 178), and the
Immigration Act of 1924 excluded them
from admission into the United States.
43 Stat. 161, 8 U.S.C. § 213. State leg-
islation has denied to alien Japanese the
privilege of owning land. 1 California
General Laws (Deering, 1931), Act 261;
5 Oregon Comp.Laws Ann. (1940), §
61-102; 11 Washington Rev. Stat. Ann.
(Remington, 1933), §§ 10581, 10582.
It has also sought to prohibit intermar-
riage of persons of Japanese race with
Caucasians. Montana Rev. Codes 1935,
§ 5702. Persons of Japanese descent have
often been unable to secure professional
or skilled employment except in asso-
ciation with others of that descent, and
sufficient employment opportunities of
this character have not been available.
Mears, Resident Orientals on the Ameri-
can Pacific Coast (1927), pp. 188, 198-
209, 402, 403; H.R.Rep. No. 2124, 77th
Cong., 2d Sess., pp. 101-138.
The message was clear and abhorrent: If
you are a minority denied assimilation into
ORANGE COUNTY LAWYER
the American mainstream by discrimina-
tory practices and laws; if the nation of your
ancestry wages war on America, you will be
suspected of disloyalty so as to justify war-
time measures against you and your race.
In a short opinion relying on the Court’s
opinion and reasoning in Hirabayashi, Justice
Stone again affirmed Minoru Yasui’s convic-
tion for curfew violation as well.
The Second Internment Cases:
Korematsu and Endo
In December of 1944, the U.S. Supreme
Court decided two remaining cases relating
to the internment of Japanese Americans:
Korematsu v. United States and Ex Parte Endo.
The Korematsu case involved Fred Kore-
matsu’s refusal to report to an assembly center
for subsequent internment in relocation centers
outside of the West Coast. The Endo case was a
writ of habeas corpus filed on behalf of Mitsuye
Endo based on the argument that, as a conced-
edly loyal American citizen, she could not con-
tinue to be incarcerated in a relocation center.
Fred Korematsu set forth the principal
argument that Executive Order 9066 violated
his rights to Equal Protection under the 14th
amendment since the order, although facially
neutral, was clearly aimed at the Japanese
American population on the West Coast of
the United States mainland.
In an opinion that belied his reputation as
a civil rights champion, Justice Hugo Black
upheld the validity of the Executive Order in
a 6-3 split opinion.
The Korematsu decision is rife with ironies.
It is the first opinion to recognize race as a “sus-
pect classification” requiring strict scrutiny for
a governmental action to be upheld. Neverthe-
less, Justice Black did not apply this test with
rigor, instead finding the orders issued by his
friend, General DeWitt, constitutionally were
justified. Justice Black cited the prior Hira-
bayashi case as precedent and gave great defer-
ence to the judgment of the military, stating:
We cannot say that the war-making
branches of the Government did not
have ground for believing that in a criti-
cal hour such persons could not readily
be isolated and separately dealt with,
and constituted a menace to the national
defense and safety, which demanded
that prompt and adequate measures be
taken to guard against it.
Justice Black also noted, as evidence that there
were a large portion of the population of Japa-
nese Americans disloyal to the United States, the
refusal of many to pledge loyalty to the govern-
ment that incarcerated them based on race.
However, there were substantial problems
in using these loyalty questionnaires adminis-
www.ocbar.org
tered in the hostile environment of relocation
centers as evidence of disloyalty. The ques-
tionnaires asked if he/she would “foreswear
allegiance to the Japanese Empire.” In the
minds of many, this would suggest that they
did have allegiance to Japan in the first place.
In the minds of some, the failure to swear loy-
alty to the United States was a protest against
the internment. Moreover, the government’s
harsh treatment of Japanese Americans dur-
ing the internment made many suspect that
an affirmative vote to this question might
subject them to harsher treatment.
Justice Frankfurter concurred with the
majority opinion, emphasizing the power of the
president in time of war and concluding that
Congress had the power to make a violation of
[T]here was no
documented act of
espionage of any
Japanese American
and the internment
of the Japanese
Americans was
a result of racial
prejudice, wartime
hysteria, and lack of
political leadership.
such military orders under the Constitution.
Justice Roberts dissented to the major-
ity opinion. Stating that the order was clearly
a violation of Korematsu’s rights, the justice
pointed out that Korematsu was faced with
two contradictory military proclamations: one
which required him to stay in his home in a
designated military zone and another which
required him to relocate. Moreover, the dis-
sent pointed out that the majority’s reliance on
its prior opinion in Hirabayashi was misplaced
since that involved only a violation of a curfew
order, not an order which was an overall plan
for relocation of Japanese Americans from the
United States West Coast. Although not men-
tioned in his dissent, Justice Roberts headed a
commission that investigated the causes of the
Pearl Harbor attack. In the Roberts Commis-
sion Final Report there was a comment sug-
gesting that persons other than those associated
with the Japanese Embassy were involved in
espionage for Japan. If anyone knew of facts
which supported Japanese American espio-
nage, it would have been Justice Roberts.
Justice Robert Jackson, who would later
serve as the chief United States prosecutor in
the Nuremberg trials, wrote a stinging dissent.
He vehemently disagreed that the military had
such authority and characterized the ceding of
such power as a “loaded weapon” ready for the
hand of any authority that can bring forward a
plausible claim of an urgent need.
Justice Jackson emphasized that Fred Kore-
matsu was a native-born American citizen
who was singled out simply because of his
ethnic heritage. He stated:
(Korematsu’s crime) consists merely of
being present in the state whereof he is
a citizen, near the place where he was
born, and where all his life he has lived. []
[H]is crime would result, not from any-
thing he did, said, or thought, different
than they, but only in that he was born
of different racial stock.
Justice Jackson emphasized that guilt is per-
sonal, not inheritable, and that the majority
was willing to criminalize actions which clearly
would otherwise be lawful in peace time.
In his dissent, Justice Murphy was even more
blunt, characterizing the order excluding Japa-
nese Americans from the United States West
Coast as falling into the “ugly abyss of racism.”
In contrast to the Korematsu decision, the
court unanimously held in favor of Mitsuye
Endo in her habeas corpus case. The decision
held that the United States could no longer
imprison a conceded loyal American citi-
zen in relocation centers based on the scope
of Public Law 504. Justice Douglas did not
reach the constitutional issues presented in
the case. It was a decision which was gener-
ally perplexing to the public in light of the
contrasting holding in Korematsu.
The Writs of Coram Nobis
In 1981, historical legal scholar Peter Irons
discovered that in the briefing of the Korematsu
case the U.S. Solicitor General had deliberately
hidden evidence demonstrating loyalty of Jap-
anese Americans in contradiction to General
DeWitt’s Final Report. Specifically, an FBI
report and a report from the FCC found no
evidence of shore-to-ship espionage by Japa-
nese Americans. The FCC investigated over
500 reports of such transmissions and found
no credible evidence. Moreover, a report from
the Office of Naval Intelligence, the Ringle
report, did not support the wholesale intern-
JANUARY 2018 29
ment of all Japanese Americans, just a very
limited number. Fahy was expressly warned
on two separate occasions, for two separate
cases, by two separate attorneys of this existing
evidence, yet he did nothing to disclose these
facts. These newly discovered facts served as a
basis in 1984 for Fred Korematsu’s application
for writ of coram nobis to dismiss his convic-
tion for failing to report to a relocation center.
Korematsu’s case was heard by Judge
Marilyn Hall Patel. The attorneys for the
government offered to dismiss Korematsu’s
conviction, arguing that this mooted the
writ. However, Judge Patel disagreed and
proceeded with the hearing.
Judge Patel’s opinion took judicial notice
of the report of the Commission on War-
time Relocation of Civilians. Established in
1980, this bipartisan federal commission was
directed by Congress to review the facts and
circumstances surrounding Executive Order
9066 and its impact on American citizens and
permanent resident aliens as well as Alaskan
natives in the Pribilof and Aleutian Islands. To
arrive at its findings, the nine-member federally
appointed body held hearings in major U.S.
cities and heard testimonies from more than
750 witnesses. Its conclusions were submitted
in 1983 as the report entitled “Personal Justice
Denied” and recorded the fact that there was
no documented act of espionage of any Japanese
American and the internment of the Japanese
Americans was a result of racial prejudice, war-
time hysteria, and lack of political leadership.
The evidence demonstrated that not only
did the solicitor general fail to expressly dis-
close the contrary evidence, but in drafts of
written briefs to be submitted to the high
court, the solicitor general had repeatedly
edited a footnote that would have clearly dis-
closed the evidence contrary to the assertions
of the DeWitt report. The final footnote was
an opaque, disingenuous statement that did
not clearly dispute the findings of the report.
When Fahy was expressly questioned about
the footnote, he lied and did not disclose to
the court that there was contrary evidence to
the DeWitt report. Based on the evidence pre-
sented in Korematsu II, Judge Patel granted the
writ. She summarized the effect of her ruling
in eloquent fashion:
Korematsu remains on the pages of our
legal and political history. As a legal
precedent it is now recognized as hav-
ing very limited application. As historical
precedent it stands as a constant caution
that, in times of war or declared military
necessity, our institutions must be vigi-
lant in protecting constitutional guaran-
tees. It stands as a caution that in times
of distress the shield of military necessity
30
and national security must not be used to
protect governmental actions from close
scrutiny and accountability. It stands as a
caution that in times of international hos-
tility and antagonisms our institutions,
legislative, executive and judicial, must
be prepared to exercise their authority to
protect all citizens from the petty fears
and prejudices that are so easily aroused.
Ultimately, the exposed misconduct of
the Office of the Solicitor General eventu-
ally led to an unprecedented apology in 2011
by the acting Solicitor General Neal Katyal
for Fahy’s actions in the initial briefing and
argument of the Korematsu case before the
Supreme Court.
Conclusion: Korematsu v. United States:
A Great Case That Could Have Been
I believe that the misconduct of the solicitor
general in the briefing of the Korematsu deci-
sion had profound effects. It would take forty
years for Fred Korematsu to have his convic-
tion reversed. Moreover, the disparagement
endured by the Japanese Americans affected
by General DeWitt’s false assertions of espio-
nage would last at least that long. The inability
of the judicial system in 1944 to recognize the
grave injustices inflicted upon over 110,000
racial minorities was clear and unjustified.
The politics at that time did not compel a
finding against Korematsu. President Roos-
evelt had been overwhelmingly reelected to
a fourth term. The eight Justices who were
appointed by him did not have to worry about
affecting FDR’s reelection. The Japanese
American 442nd Regimental Combat team
had performed spectacularly in Europe, just
recently rescuing 200 soldiers of the Texas
Lost Battalion at a cost of 200 casualties, the
latest of their heroic exploits. The wars in the
Pacific and Europe were drawing to a close.
The opinion in Korematsu was heavily criti-
cized, even before the revelations of attorney
misconduct were made public by Peter Irons.
However, the fact remains that this attorney
misconduct probably contributed to the error
that was the Korematsu opinion.
In his memoirs, Justice Douglas regretted
joining the majority in Korematsu. He recalled
a vision of the Imperial Japanese Army march-
ing across the United States joined by Japanese
Americans. He admitted that the argument
was fanciful now, but was persuasive at the
time of the argument. Was such an argument
appropriate advocacy by the solicitor general in
light of the concealed facts?
The resulting opinion could have been very
different in the initial Korematsu case had Fahy
been completely honest to the high court. The
decision was 6-to-3 against Korematsu, but
with the facts demonstrating no real evidence
of disloyalty by Japanese Americans, the deci-
sion could have easily been a 5-to-4 vote in
Korematsu’s favor. Justice Douglas initially was
going to dissent but was persuaded by Frank-
furter, who still had close ties to the Roosevelt
administration, to join the majority. Justice
Black adamantly defended his decision until his
death and as mentioned, was personal friends
with General DeWitt, so it is unlikely that he
would have ever changed his vote. But before
the Hirabayashi opinion, in chambers discus-
sions, Justice Rutledge was skeptical of whether
the Constitution allowed such a delegation of
power to the military. In his memoirs, he also
cited the Japanese American cases and one
death penalty decision as the most troubling
he encountered on the bench. He and Douglas
could have been the fourth and fifth votes in
favor of overturning Korematsu’s conviction.
Justice Black wrote the majority opinion,
which was the first to apply the standard of
strict scrutiny to racial classifications. Most
legal scholars believed that he did not apply that
standard with much rigor to the military orders
of his personal friend, General DeWitt. The
thought that Fahy’s misconduct had a determi-
native effect on the result in Korematsu is echoed
in the September 1987 opinion of the 9th Cir-
cuit, authored by Justice Mary M. Schroeder,
which unanimously reversed the trial court that
granted Gordon Hirabayashi’s writ of coram
nobis and vacated his conviction on violating
the internment order, but refused to dismiss
his conviction on the curfew violation. Justice
Schroeder noted that the Supreme Court deci-
sions “probably would have been materially
affected” by Fahy’s misconduct and reversed the
trial court on the curfew conviction.
What a tremendous opinion Korematsu
could have been! It could have implemented
this new strict standard for racial classifications,
pointing out the heroic exploits of the Japanese
Americans and discrediting the court’s former
Hirabayashi opinion, which basically held that
Japanese Americans were not to be trusted.
Instead, the published Korematsu case,
along with Plessy v. Ferguson and the Dred Scott
decision, remains one of the court’s worst—a
decision that took at least forty years to clarify.
Technically, the Korematsu decision has not
been reversed. Judge Patel’s ruling was never
appealed. The high court’s proclamations of
deference to military judgment, race-based or
otherwise, still reverberate to this day.

Judge Kirk H. Nakamura is the Assistant
Presiding Judge in Department C-1 in Orange
County Superior Court. Judge Nakamura
can be reached about this article through the
Editor-in-Chief at gialisa@gmail.com.
ORANGE COUNTY LAWYER