Supreme Court Cases (and other interesting cases) - A Thread!

[Bunburryist]

How would something as apparently pretty clean cut as this be started in the first place?  Might it have been that the people who decided to deport him in the first place weren't even lawyers (after which  they had to get lawyers involved to try and clean up the mess in court)?  Might it have been started by lawyers who knew exactly what they were doing but that it wouldn't be challenged?

[TheRealJoeFish]

Thanks for the thread, Joe.  Look forward to following it.

^^^ this ^^^

I appreciate reading about important cases in ordinary language from someone I trust to not consciously spin the analysis.

I'm trying to remember which horribad precedent from way back we are still saddled with - farther back then Citizens United of course.  There's gotta be something awful like Dred Scot still on the books, amirite?

Know of any?

Absolutely.  The following case is still on the books:

Korematsu v. United States - 1944
Majority Opinion: J. Black joined by C.J. Stone, J. Reed, J. Frankfurter, J. Douglas, J. Rutledge
Concurrence: J. Frankfurter
Dissent: J. Roberts
Dissent: J. Murphy
Dissent: J. Jackson

Facts:  On May 9, 1942, just over five months after the United States declared war on Japan following the attack on Pearl Harbor, the US Army (with the approval of President Franklin Delano Roosevelt) created an "exclusionary zone," essentially spanning the west coast of the USA, and ordered all persons of Japanese ancestry, including US Citizens, to vacate this zone.  Simultaneously, in a related but separate action, Japanese-Americans (as well as German-Americans and Italian-Americans) were ordered to report to "assembly and relocation centers" (you may have heard George Takei talk about being involuntarily detained with his family by the US government for years in one of these camps).  This was based, in large part, on events which happened on a Hawaiian island in January of 1942: a Japanese fighter pilot landed his disabled plane on the island, which was US territory but not yet a state.  The residents of the island detained him, but the three residents of Japanese ancestry attempted to help him escape.  

Fred Korematsu was an American Citizen of Japanese Ancestry who had lived for many years in San Leandro, California, which was located in the exclusionary zone.  When he was ordered to vacate his residence and proceed to an internment camp, he refused, and was charged with a federal misdemeanor carrying a punishment of up to one year imprisonment or $5,000 fine.

Holding: The creation of exclusionary zones and the forced removal of American citizens with Japanese ancestry from their homes was a Constitutionally valid exercise of war-time power.

Reasoning:  The majority first noted that the exclusionary zone provision was one of a number promulgated under Executive Order 9066, which stated that "the 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."  It was noted that a different provision promulgated pursuant to EO 9066, a curfew which "subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residence from 8 p.m. to 6 a.m.," was upheld in Hirabayashi "as a 'protection against espionage and against sabotage.'"

Quoting Hirabayashi, the Supreme Court stated "... we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.  We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical 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."  The Court further explained that "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."  

The Court explained that the removal/exclusion of Japanese-American citizens was not a punishment but was rather a national safety measure.  The majority stated that "we are not unmindful of the hardships imposed by [war] upon a large group of American citizens," and stated that although "[c]ompulsory exclusion of large groups of citizens from their homes... is [usually] inconsistent with our basic governmental institutions... when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."  

In support of the exclusionary order, the Court noted that there were approximately 5,000 Japanese-American citizens who "refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan."  

The final paragraph of the majority opinion is presented here in full, with highlights bolded by me:  "It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that, at that time, these actions were unjustified."

Justice Frankfurter's Concurrence:

The thrust of Justice Frankfurter's concurrence is essentially that "the war power of the Government [under the Constitution] is 'the power to wage war successfully.'  Therefore, the validity of action under the war power must be judged wholly in the context of war."  Essentially, Justice Frankfurt argues that Constitutional powers are expanded during wartime, and that all that is expedient is permitted: "To recognize that military orders are 'reasonably expedient military precautions' in time of war, and yet to deny them constitutional legitimacy, makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war."  Although Justice Frankfurter addressed "military orders" in general, he did not consider that some but not all military orders may be Constitutional.  In a moment judged harshly by history as a Pontius Pilate-esque washing-of-the-hands, Frankfurter concluded: "To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did.  That is their business, not ours."

Justice Roberts's Dissent:

Justice Roberts stated that, although certain provisions such as a curfew or "temporary exclusion of a citizen from an area for his own safety or that of the community" may be acceptable, the "indisputable facts [of the present case] exhibit a clear violation of Constitutional rights."  This is because "it is the case of convicting a citizen as a 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."  Justice Roberts noted that the majority divorced the questions of "is it all right to exclude Korematsu from the exclusionary zone," which it addressed, and the question of "once he's been excluded, does he have to report to an internment camp," which the majority did not really address, and which was taken as a given.  Justice Roberts stated that, in "erroneously divid[ing] that which is single and indivisible," the majority incorrectly framed the issue as "should Korematsu be punished for refusing to leave?" when in reality the operative question was "should Korematsu be punished for refusing to submit to imprisonment."

Justice Murphy's Dissent:

Justice Murphy was more blunt, and his dissent is the one that is often cited to this day: "This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power,' and falls into the ugly abyss of racism." Justice Murphy stated that the Supreme Court's test of "whether the Government... can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger." The order in the instant case, even if there was a very real fear of invasion of the Pacific coast, "must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage... [and] it is difficult to believe that reason, logic, or experience could be marshaled in support of such an assumption," which Justice Murphy referred to as an "erroneous assumption of racial guilt...." He noted that the US Army Lieutenant General John L. DeWitt, who issued the order, wrote a report in which "he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies... at large today...'" DeWitt also described Japanese-Americans as "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race culture, custom and religion...' [and as] given to 'emperor worshipping ceremonies...'" Essentially, Justice Murphy said "if this isn't racism, nothing is."

Justice Jackson's Dissent

Justice Jackson focused primarily on Fred Korematsu himself, stating that he "was born on our soil... the Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence... Korematsu... has been convicted of an act not commonly a crime. It 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." Justice Jackson noted that, under the order, "a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole," would all have been permitted to stay in the exclusionary zone, with "[t]he difference between their innocence and [Korematsu's] crime... result[ing], not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock." The principle Justice Jackson annunciated was that "if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable." He also took the majority to task for essentially waiving constitutional protections due to the war, saying that although "It would be impracticable and dangerous idealism to expect or insist that each specific military command... will conform to conventional tests of constitutionality... I [would not] distort the Constitution to approve all that the military may deem expedient [which] is what the Court appears to be doing... If, as the Court holds, [this order is constitutional], then we may as well say that any military order will be constitutional, and have done with it." He also said, basically, that General DeWitt is a racist and that his "unsworn, self-serving statement" has been inexplicably accepted by the majority as fact.

Conclusion and Commentary

Korematsu, along with Dred Scott and a few other cases, is remembered as one of the biggest black eyes on the US Supreme Court and this country's history. Although it technically remains legal precedent - inasmuch as it has never been explicitly overturned - it is recognized (and was fairly shortly after its release) by virtually all legal scholars and professionals as incorrect, non-binding, and non-precedential.

The principles discussed in Korematsu, of course, remain important today (and, some may argue, are becoming more important with each passing day). The questions of what the government can do when there is X level of danger vs. 2*X level of danger apply to all forms of government power, from the military to mandatory vaccination to whether a police officer has to give Miranda rights to a certain criminal in a certain situation. Justice Jackson's discussions of due process and the heritability of guilt are exceedingly timely to issues of racial profiling. And, of course, the boundaries of the US government's power to act upon a subset of the population based on the race or religion of that population, well...

Let's just say every American should be familiar with Korematsu v. US.