Today in 1944: Korematsu v. U.S. is decided

December 18, 2015

Today in Legal HistoryEven though the presidential election is still almost 11 months away, we’ve already seen some fairly, shall we say, remarkable ideas presented by the candidates – and by Donald Trump in particular.

One of his more spectacular proposals is banning the entrance to the United States by Muslims, a response to the shooting spree carried out by two radicalized Muslims in California earlier this month.  When defending this plan, Trump compared itfavorably – to the U.S. government’s internment of Japanese Americans during World War II.

Given the contentiousness of Japanese internment, this comparison sparked even more backlash, with the majority of the population conceding (at a very minimum) that internment was a mistake.  In fact, both Congress and the White House have both officially stated as much within the past 30 years.

Interestingly, the last of the three branches of government – the Supreme Court – has yet to officially rule that such a policy would run afoul of the law.  Further, the Supreme Court even explicitly endorsed Japanese internment in a court ruling: Korematsu v. United States.

The notorious case, which is celebrating its 71th anniversary today, needs no introduction: in a 6-to-3 decision, the Supreme Court upheld the forced relocation into camps of 110,000 Japanese-Americans (who were also stripped of their property) – 62% of whom were U.S. citizens – on the grounds that the Court must defer to the military in this national security matter.

Indeed, the Court itself flatly denied that the policy was based on racial prejudice, instead asserting unequivocally this internment to be a necessary precaution as part of the war effort.  The closing paragraph of the majority opinion goes so far as to imply that any discussion of racial prejudice undermines the military’s efforts: “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.”

Additionally, the closing sentence of that final paragraph strongly suggests that “evidence of disloyalty on the part of some” would be sufficient to justify internment of Japanese-Americans en masse.

Manzanar Internment CampAside from its bearing on Japanese internment, Korematsu is also notable for being the first instance of the Court applying strict scrutiny in a ruling – and for being one of the rare instances that the government actually satisfied that standard.

And Korematsu has never been overturned.  That is, the ruling continues to be valid precedent even today.

Does that mean that if a hypothetical President Trump actually made good on his plans to exclude all Muslims from entering the country, that the Supreme Court would uphold the policy against any of its inevitable legal challenges?  After all, the attacks in San Bernardino, California certainly could be used as “evidence of disloyalty on the part of some” Muslims, and under Korematsu, wouldn’t the president have the authority to take appropriate action to ensure the national security of the nation?  One may even argue that the threat from Muslims today is greater than any potential threat posed by Japanese-Americans during World War II, pointing to, if nothing else, the amount of harm done by just two individuals with no military training or allegiance, instead solely acting on behalf of a nation-spanning ideology.

Thankfully, the passage of time since Korematsu has given the nation time to reflect on its past mistakes, as well as to provide a fuller understanding of “racial prejudice.”

In other words, if the Supreme Court ruled on a challenge against President Trump’s Muslim exclusion policy, Korematsu wouldn’t survive.  In fact, it’s very likely that the only reason that Korematsu has survived for as long as it has is because the government hasn’t made the same or similar mistake that it did during World War II.

President Trump’s policy would provide the Court with the vehicle it would need to strike down the holding of Korematsu that justifies the segregation of an entire class of people based on national security concerns.

The question remains, though, whether such an exclusionary policy would be an acceptable price to pay simply for the overturning of a 71 year old ruling.