How will we decide the next Korematsu? |

How will we decide the next Korematsu?

Noah Klug
Mountain Law

Not long before his death earlier this year, Justice Antonin Scalia gave a public speech concerning the Supreme Court’s decision in Korematsu, which upheld the forced relocation and internment of Japanese Americans from the West Coast during World War II. Like many modern commentators, Scalia called the decision “wrong,” but he also invoked the Latin phrase “inter arma enim silent leges” (in times of war the laws fall silent) to explain that he would not be surprised to see something similar happen again.

Scalia’s comments recalled Justice Robert Jackson’s famous dissent in the 6-3 decision where he observed that “courts can never have any real alternative to accepting the order that it was reasonably necessary from a military viewpoint.” In other words, in the wake of the Japanese attack on Pearl Harbor, with President Roosevelt exercising his powers as Commander in Chief to round up all persons of Japanese ancestry, the court was essentially powerless to intervene. One imagines it would have created a Constitutional crisis at a critical time in the nation’s history had the Court challenged the President’s war powers.

Yet Jackson felt that the court should not remain silent and decline to declare President Roosevelt’s order unconstitutional. His concern was that a judicial opinion that somehow rationalizes racism — rounding up Japanese-Americans solely because of their ancestry and without any showing that they were disloyal to the country — creates an unfortunate legal precedent that cannot be undone. “The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

In the time since the war ended and the racist fever broke, the US government has gradually renounced Japanese-American relocation and internment. Congress passed the Non-Detention Act in 1971, which states that internment of citizens may only be accomplished by Congress, not through executive orders. The Civil Liberties Act of 1988 (signed into law by Ronald Reagan) paid reparations to Japanese-Americans who lost property during the war after being relocated. The U.S. Solicitor General’s Office, which represents the federal government before the Supreme Court, admitted in 2011 that it had withheld reports on Japanese-Americans’ loyalty when defending Korematsu and similar cases. Fred Korematsu himself, the Japanese-American who challenged the relocation order in court, was able to get his criminal conviction overturned in 1983 on the basis that the government had knowingly submitted false information to the Supreme Court that had had a material effect on the decision. This information showed the conclusion of military commanders that Japanese-Americans did not as a whole sympathize with Japan.

But even though many, like Scalia, have come to see the Korematsu decision as wrong with the hindsight of history, others rally around it, at least in principle. Just as Jackson warned, members of Congress and others in office or seeking office have argued for such policies as rounding up those of Syrian dissent or who are Muslim. Inevitably, it is argued that the US is at war with groups such as ISIS such that normal constitutional protections against discrimination must give way. This is the “repurposing” of the decision that Jackson foresaw.

Are there times when the country faces such a serious threat that it is justified in taking action against those who bear resemblance to the enemy? Or is this just a way of justifying discrimination under the guise of national security? Scalia was probably right that a case similar to Korematsu will occur again. How will we decide it?

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or

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