On This Day in 1944, the Supreme Court Upheld the Executive Order That Incarcerated Over 120,000 Japanese Americans During World War II

When the U.S. Supreme Court delivered its verdict in Korematsu v. United States on December 18, 1944, it had been over two and a half years since Fred Korematsu was arrested in San Leandro, California, on the suspicion he was Japanese.

His arrest came as part of an effort to cut down espionage, sabotage and collusion in the aftermath of the attack on Pearl Harbor. Executive Order 9066 authorized the government to remove civilians from military areas. Public Law 503 made violation of the executive order illegal. And in the following months, the military ordered “all persons of Japanese ancestry, both alien and non-alien,” to leave their homes on the West Coast and move to detention centers.

But the combination of executive orders, laws and military commands were indiscriminate and their brunt fell upon innocent Japanese Americans, who were forced into concentration camps without regard for their loyalty, only their ancestry.

Within six months, 122,000 Japanese Americans, more than half of whom were American citizens, were incarcerated.

Korematsu was one who resisted the order. He underwent plastic surgery on his eyelids to appear “Spanish-Hawaiian” and altered his draft card to read “Clyde Sarah,” the Oakland Tribune reported at the time.

His eventual arrest on Memorial Day, 1942, was just the beginning of his fight. “His defiance led to a historic test of liberty and an infamous Supreme Court precedent that still looms over American law today,” Erick Trickey wrote in Smithsonian.

After reading about Korematsu in the paper, Ernest Besig, who founded the American Civil Liberties Union branch in Northern California, wanted to use the 23-year old’s case as a test trial to challenge the policy of internment.

The national ACLU had been hesitant to pursue legal action against the executive order, hoping instead to persuade President Franklin D. Roosevelt through back channels and the so-called “old boys’ network” behind the scenes.

Besig and other ACLU affiliates pursuing similar legal action chafed at the idea that lawyers and Roosevelt administration officials were taking slow, refined meetings in Washington while Japanese Americans who committed no crimes were languishing in appalling prison conditions.

Eventually, as Korematsu’s case worked its way through the court system, the national ACLU relented, recruiting two prominent Washington lawyers, Charles Horsky and Wayne Collins, to represent Korematsu before the Supreme Court.

In a 6-to-3 decision, the Supreme Court upheld Korematsu’s conviction, claiming that the evacuation order was legal and the executive order showed no racial prejudice. 

Hugo Black delivered the opinion of the court, arguing that the “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country.”

In other words, Black and the five other justices in the majority argued, the strategic necessity of addressing an unspecified threat trumped the need to separate “the disloyal from the loyal.”

Justices Owen Roberts, Frank Murphy and Robert H. Jackson all offered strong dissents against the now-notorious decision.

Roberts described Korematsu’s case as “punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”

To Jackson, the court’s decision was a “a far more subtle blow to liberty” than the military orders themselves, codifying the internment of loyal, law-abiding citizens in U.S. law.

Most striking, however, was Murphy’s assertion that the policy “falls into the ugly abyss of racism.”

“All residents of this nation are kin in some way by blood or culture to a foreign land,” he argued. “Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.”

Despite the arguments of their colleagues, Black and his majority carried the day, leaving Korematsu’s conviction intact.

“We cannot—by availing ourselves of the calm perspective of hindsight—now say that, at that time, these actions were unjustified,” Black wrote in his majority opinion.

But history did not agree. With nearly 40 years of hindsight, a California court overturned Korematsu’s conviction in 1983, and he won the Presidential Medal of Freedom in 1998 for his lifelong work for civil liberties and racial justice.

Eli Wizevich | | READ MORE

Eli Wizevich is a history correspondent for Smithsonian. He studied history at the University of Chicago and previously wrote for the El Paso Times.