Courts: Background Reading
Within four months of the exclusion order, all persons of Japanese descent had been removed from the west coast to supposedly prevent sabotage and espionage. While some Italians and Germans were imprisoned in the U.S., they posed no threat on the west coast and faced nothing like the racial animosity borne by the Japanese. Too numerous (700,000 Italians and 300,000 Germans) to be arrested or confined, they were also closely connected with powerful blocs of voters. Without any due process of law, Japanese families were forced to leave their homes with only what they could carry and sent to Temporary Assembly Centers and then routed to any of the ten hastily constructed WRA camps located on large tracks of federal land in remote areas of the western United States far from strategic areas (see table below). The camps were built from scratch of wooden barracks with tarpaper walls surrounded by barbed wire fences and guard towers. The unsatisfactory living and working conditions were communal with little privacy and minimum comforts in extreme climates.
People of Japanese descent in the U.S. generally had little choice about this mass removal from the west coast. Initially, Nisei who were born in America (see terminology below), assumed that none of this would apply to them as U.S. citizens, but would affect their Issei parents, who were Japanese nationals not allowed to become citizens because of the Immigration Act of 1924. The eleven months after Pearl Harbor saw a progressive stripping of their civil rights and ability to move about freely. Most Japanese Americans simply did not have the assets to move inland from the newly designated coastal military areas since much of their money was in bank accounts blocked by the government. Some successfully traveled by train, but those who tried to take automobiles encountered difficulties such as filling stations refusing to sell them gas or police turning them back at state borders. Only a few thousand were able to take advantage of this brief window of opportunity before the military denied them permission to leave.
With the executive and legislative branches, also by extension the military, continuing to add more restrictions, a few Japanese Americans turned to the judicial branch of the U.S. government. There were four notable legal challenges, which were the earliest resistance to this blow to Japanese Americans civil liberties, that eventually went to the Supreme Court. Other subsequent reactions to this wartime treatment included draft resistance and even the renunciation of U.S. citizenship with the intention to go to Japan (even by Nisei who had never been there before).
The four people involved in what are now referred to as the Japanese American cases were born in the United States to Issei parents. As American citizens Nisei were entitled to all the rights and protections of the U.S. Constitution. Arguably, several amendments in the Bill of Rights were violated, for example, the IVth bars the government from unreasonable search and seizure of an individual or private property, the Vth insures people cannot be imprisoned without due process of law, and the VIth provides protections for people accused of crimes to a speedy public trial. Whether intentional test cases or conscious resistance, the four Nisei involved—Minori Yasui, Gordon Hirabayashi, Fred Korematsu, and Mitsuye Endo—tenaciously challenged the constitutionality of the federal government’s actions with little support from their own ethnic community or society at large.
Yasui, Hirabayashi, and Korematsu purposely violated the curfew imposed by the military and/or refused to register or comply with the exclusion orders. Endo’s was the perfect test case. Her writ of habeus corpus (Latin for “you may have the body”) petition asserted her right to work as a state employee and not be detained as a loyal U.S. citizen, but the judge held on to her petition for a year and then denied it after the Supreme Court ruling on the Hirabayashi and Yasui cases was made public. Endo appealed. Although the WRA offered to release her, she chose to stay in the WRA camps unless the rules were changed so she could depart by right rather than leave clearance, and to see her case through to a successful end in the Supreme Court. The following table summarizes their experiences with the judicial branch.
Cases against Japanese Americans
Defendant: Minori YasuiAge: 25
Occupation: Lawyer
Offense: Violation of the curfew applied to Japanese Americans. He also ignored exclusion order, but was not tried for this.
Verdict: Guilty. The statute is unconstitutional without martial law when applied to a U.S. citizen, but the court decided that Yasui working for the Japanese consulate meant that his citizenship was renounced.
Punishment: After a 5-month delay on verdict, he received a one-year prison sentence and a $5,000 fine. Later he was sent to the Portland Assembly Center and then to Minidoka.
Appeal: The appellate court declined to rule, sending the case directly to the Supreme Court.
Supreme Court Decision: The previous judge erred about consulate work negating citizenship, and upheld conviction & legality of curfew. The decision was unanimous, and decided nine months was sufficient punishment, but suspended the fine. In 1984 writ of coram nobis was rejected, but previous conviction vacated, Yasui died before he could appeal.
Defendant: Gordon Hirabayashi
Age: 24
Occupation: College student
Offense: Violation of curfew and not registering or following exclusion orders.
Verdict: Guilty on both counts
Punishment: Two 90-day sentences were served concurrently. He spent 8 months in federal prison, and his bail was refused by plaintiff because the exclusion order required transportation to a WRA camp, which he managed to stay out of with his legal cases and sentences.
Appeal: The appellate court declined to rule, sending the case directly to the Supreme Court.
Supreme Court Decision: Considered and upheld only the curfew, while avoiding the exclusion issue. The opinion was unanimous. Later, the 1984 writ of coram nobis resulted in a split decision. Hirabayashi's failure to report was vacated, but the curfew violation was upheld. A later appeal vacated curfew the violation.
Defendant: Fred Korematsu
Age: 23
Occupation: Welder
Offense: Disobeying exclusion order
Verdict: Guilty
Punishment: Sent to San Francisco county jail with 5 months probation. Later he was sent to Tanforan and then Topaz.
Appeal: Appellate court declined to rule, sending the case directly to the Supreme Court.
Supreme Court Decision: Upheld conviction by a vote of 6 to 3 accepting the military necessit. The dissenting judges saw clear violation of constitutional rights. Later, the 1983 writ of coram nobis was granted and the previous conviction vacated by the Federal court.
Defendant: Mitsuye Endo
Age: 22
Occupation: DMV typist
Offense: No violations, She argued she was deprived of her right to work as a state employee and military officials had no right to detain her.
Verdict: A habeas corpus petition was held for a year by a judge, then dismissed without an explanation.
Punishment: She was sent to Tule Lake then Topaz. The plaintiff rejected the WRA’s offer to release her in order to see her case to the end.
Appeal: The appellate court declined to rule, sending the case directly to the Supreme Court.
Supreme Court Decision: Unanimous ruling in Endo’s favor, stating the WRA had no authority to subject a loyal citizen to exclusion.
Roger Daniel’s in his 2013 book entitled “The Japanese American Cases” goes into each of the four situations in depth also examining a wider range of cases involving military service, citizenship, loyalty, damages, and redress to demonstrate the various forms of Japanese American resistance to their treatment during WWII. He suggests that in the almost three years that it took these four primary cases to work their way through the court system, there were many forces influencing the outcomes—judicial delays, severing tactics to separate the cases, misleading claims, unpublished briefs and dissents, suppression of evidence, political reasons, the uncertain progress of the war, public opinion, and racism. Yasui, Hirabayashi, and Korematsu were found guilty due to the military necessity of the curfew and mass removal being successfully argued by the government. In Endo’s case, the Supreme Court ruled that the WRA had no authority to detain “concededly loyal” American citizen. The triumph of Endo’s successful case was dampened by the WRA announcing the day before the Supreme Court ruling was made public that all the camps would close. The four cases influenced each other and the timing of the various decision announcements was significant.
In 1945, Eugene Rostow, a professor at Yale Law School, called the Japanese American cases “a disaster” critiquing the Supreme Court’s decisions and suggesting that Executive Order 9066 and the wartime treatment of Japanese Americans was “our worst wartime mistake.” The articles he published introduced the notion of reparations for those confined in the WRA camps, eventually leading to the Redress Movement and the Civil Liberties Act of 1988, involving an apology and $20,000 payment to more than 80,000 WRA camp survivors. His hope that the basic issues would be presented to the Supreme Court again in an effort to obtain a reversal has not materialized, but other circumstances did result in the reopening of the three wartime cases that the government originally won.
In 1983, Peter Irons, a University of California at San Diego attorney and professor of political science published a book entitled “Justice at War.” He found archival evidence demonstrating that Solicitor General Charles Fahy suppressed footnotes written for the government briefs by Edward Ennis that cast doubt on the evidence used to convince the Supreme Court of the military necessity of the Japanese American WWII incarceration. Irons persuaded Yasui, Hirabayashi, and Korematsu to try using the somewhat obscure writ of coram nobis (meaning “the matter before us”) to force a reconsideration of their wartime convictions still remaining on their records and recruited lawyers in Portland, Seattle, and San Francisco to take on this work. The writ provides that a criminal conviction may be vacated if new evidence can be shown to cast doubt upon it.
The coram nobis cases had three different results. The petition for a writ of error coram nobis filed for Korematsu resulted in San Francisco federal district judge Marilyn Hall Patel granting the petition and vacating his 1942 conviction. The Yasui hearing took place in Portland with Judge Belloni vacating the conviction, but rejecting the petition. It was appealed to the 9th Circuit, but Yasui died in 1986 ending the appeal. The Hirabayashi hearing issued a split decision, upholding the curfew violation and vacating the failure to report to the WRA camps. Both sides appealed to the 9th Circuit. The Court of Appeals judge Mary Schroeder ruled that both counts of Hirabayashi’s 1942 conviction were invalid and the curfew violation was vacated. The government decided not to appeal.
The importance of the coram nobis cases lies in demonstrating the government’s suppression of evidence and acknowledging the ethical failing of the earlier 1940s court cases. There was no direct evidence of disloyalty or espionage to warrant the incarceration of Japanese Americans during WWII. The War Department withheld information from the Justice Department then the Justice Department withheld it from the Supreme Court. Forty years later, the courts determined that racial prejudice rather than military necessity was at issue. Korematsu’s and Hirabayashi’s courage, steadfastness, and self-sacrifice for the common good were noted along with the tragic mistake of the wartime policy of the Roosevelt government.
Presidential Medals of Freedom were awarded to Korematsu (1998) and Hirabayashi (2012), but it was not until 2011 that the first public acknowledgment by any sitting Justice Department official occurred. Neal K. Katyal, acting solicitor general, delivered a lecture in the Great Hall of the U.S. Department of Justice, in which he discussed, decried, and apologized for the misbehavior of Charles Fahy in his presentations to the Supreme Court in 1943 and 1944. In his assessment of the consequences, Katyal stated, “I think it did harm the Court. But it obviously harmed others as well. It harmed approximately 120,000 Japanese Americans. It harmed the department, which led the Court, in part, to the results that it reached. It harmed our reputation as lawyers. Ultimately it harmed our commitment to those magnificent words carved on the front of the Supreme Court, at the top: Equal Justice Under Law.”
Since there were dissenting opinions in Korematsu’s 1944 case where Supreme Court judges saw a clear violation of his constitutional rights and later the 1983 coram nobis petition was granted in Federal Court vacating his previous conviction, Supreme Court justices have referred to the case on occasion. Most recently in 2018, Korematsu was mentioned at length in a Supreme Court decision on the Trump administration’s travel ban in Trump v. Hawaii. Chief Justice John Roberts stated “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” The two dissenting Justices Sotomayor and Ginsburg considered Roberts’ comments as proof positive the Supreme Court finally overturned Korematsu, although it was not an actual overturning of the precedent. As Sotomayor stated, “This formal repudiation of a shameful precedent is laudable and long overdue.” The Supreme Court has yet to have an opportunity to officially overturn the 1944 decision. The statements above may be the closest the Court will ever come to it.