Op-Ed: The Supreme Court was right to overturn Korematsu. Now it needs to overrule Hirabayashi

The Supreme Court finally took the step of overruling Korematsu vs. United States last week, its 1944 decision upholding the mass removal of Japanese Americans from their homes along the West Coast during World War II.

The move, which was included in the Trump vs. Hawaii travel ban decision, was long overdue.

The high court’s Korematsu ruling was undermined decades ago by scholars and advocates who revealed that Justice Department lawyers had made crucial misrepresentations to the court during litigation.

The attorneys hid the fact that a report depicting Japanese Americans as overwhelmingly loyal was actually the opinion of a naval intelligence officer. They also presented as facts unsubstantiated claims that Japanese Americans had subversive tendencies. These revelations played a key role in eroding the validity of the Korematsu decision.

As Chief Justice John G. Roberts Jr. wrote in his opinion, the Korematsu decision “was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

But to fully exorcise the ghosts of its World War II errors, the court must relegate its 1943 decision in another case, Hirabayashi vs. United States, to the same dustbin.

Weeks before ordering Japanese Americans to leave their homes and report for detention, the Army, with presidential authority, imposed a curfew on them. They could not leave their homes from dusk to dawn without explicit permission. Even though the U.S. was at war with Germany and Italy in addition to Japan, the order did not touch German Americans or Italian Americans. Just Japanese Americans.

Gordon Hirabayashi, a student at the University of Washington, defied the curfew. He was prosecuted, and he took his challenge to the Supreme Court. In a 9-0 decision, the court upheld the curfew. It ruled that Army officials, facing a threat of Japanese invasion, acted reasonably, and not out of racism, in imposing the curfew.

But as it turns out, in the Hirabayashi case, the government engaged in misconduct similar to its actions in the Korematsu case. In fact, with Hirabayashi, the wrongdoing was even worse. Archival evidence makes clear that the government grossly misrepresented the military threat. Lawyers told the court that the military was preparing for a Japanese invasion of the West Coast, when, in fact, the military was doing nothing of the sort and military planners were certain that such an invasion was impossible.

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Overruling Hirabayashi is especially urgent because there are signs that, unlike Korematsu, it retains life. Justice Clarence Thomas cited the Hirabayashi case approvingly in one of the court’s enemy combatant cases, and Defense Department lawyers recently invoked the decision as a valid precedent in a case pending in the military tribunals at Guantanamo.

In some ways, the Hirabayashi decision is more dangerous than the Korematsu decision. The Korematsu ruling approved the mass removal of an entire racial group from a region of the country, something that, we can assume, is unlikely to recur. The Hirabayashi decision approved an order confining a racial group to their homes overnight — a less repressive and arguably more repeatable measure. If one of the Supreme Court’s Japanese American relocation cases is likely to be rehabilitated and redeployed, it’s Hirabayashi, not Korematsu.

Dissenting in the Korematsu case in 1944, Justice Robert Jackson compared the court’s opinion to “a loaded weapon” lying around for a future president to use. Last week the court took the ammunition out of Korematsu. But another gun sits in its shadow. Although its bullets are rusty, they are still capable of being fired.

Eric L. Muller is a professor at the University of North Carolina School of Law. He is writing a book about lawyers who helped to run concentration camps for Japanese Americans during World War II.

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