Op-Ed: The Japanese American internment decision: A dangerous relic

Friday marks the anniversary of one of the most infamous legal decisions in the history of our country, Korematsu vs. United States.

Seventy-three years ago, during World War II, the United States government forcibly removed 110,000 Japanese Americans from their homes and confined them in detention camps. Loyal citizens lost their property and liberty, based solely on their ancestry. The Korematsu decision validated that action: Relying on a deeply flawed evidentiary record — which included blatant racial animus, hyperbolized threats and misrepresentations by government lawyers — the Supreme Court ruled that the need to protect against the threat of espionage outweighed individual rights.

The federal government has since acknowledged the injustice of Japanese American internment, through reparations, monuments and even a “confession of error” from an acting solicitor general, Neal Katyal, in 2011. As grandchildren of detainees, we can attest to the value of these gestures.

But as law professors, we must acknowledge another truth: The high court has never formally overruled Korematsu, and indeed has declined opportunities to revisit its decision. In law-school-speak, Korematsu remains “good law,” despite widely acknowledged “bad facts.”

We wish we could say that in 2015, Korematsu is a relic — that it survives as a mere technicality and has no real import. But we know better. Our legal system relies heavily on precedent, meaning that even a discredited opinion is a danger if it remains on the books.

Last year, Supreme Court Justice Antonin Scalia told law students at the University of Hawaii that “of course Korematsu was wrong,” but “you are kidding yourself if you think the same thing will not happen again.” That dire prediction is not implausible. Paired with canonical wartime decisions, Korematsu suggests how far our government leaders may take us in “exceptional” times.

We have recently seen how quickly this kind of thinking can enter the public discourse. Last month, the Democratic mayor of Roanoke, Va., David Bowers, cited Korematsu in support of his plea to ban assistance to Syrian refugees. More recently, when Republican presidential hopeful Donald Trump proposed banning Muslims from immigrating to this country, supporters enlisted Korematsu as a historical justification.

Korematsu also matters because of its great symbolic power. Like all Supreme Court decisions, it speaks to what this nation stands for and what it values. Korematsu told our U.S. citizen grandparents, Lily and Taizo Inazu and George and Yoshi Tani that their freedom could be taken, their rights ignored and their lives disrupted, solely because of their ancestry. Implicitly, it distinguishes between people who belong to our society and those who are merely tolerated by it. We are among the generations of Americans who have grown up in Korematsu’s shadow.

That shadow pushed us to become legal scholars and teachers. Our families’ experiences with the power of law and the frailty of its practitioners inspired us to want to train ethical, courageous lawyers — the kind who will stand up to injustice and fearmongering; the kind who will treat Korematsu as the “bad law” that it ought to be.

The rhetoric of aspiring politicians such as Trump and sitting politicians such as Bowers is a reminder of the work that remains to be done. As we wait for the Supreme Court someday to overrule Korematsu, we hope that our fellow citizens will choose to overrule it in their own way — through lives and choices that testify to a different vision of this country.

John Inazu is a professor of law at Washington University in St. Louis and the author of “Confident Pluralism: Surviving and Thriving Through Deep Difference.” Karen Tani is a professor of law at UC Berkeley and the author of “States of Dependency: Welfare, Rights, and American Governance, 1935-1972.”

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