Fred Korematsu v. United States, 323 U.S. 214 (1944), is a decision by the Supreme Court of the United States that upheld the exclusion of people of Japanese descent from the West Coast Military Area during World War II, an exclusion that led to the internment of Japanese Americans. The decision has been widely criticized, with some scholars describing it as "an odious and discredited artifact of popular bigotry" and "a stain on American jurisprudence". The case is often cited as one of the worst Supreme Court decisions of all time.

In the aftermath of Imperial Japan's attack on Pearl Harbor, President Franklin D. Roosevelt had issued Executive Order 9066 on February 19, 1942, authorizing the U.S. War Department to create military areas from which any or all Americans might be excluded. Subsequently, the Western Defense Command, a U.S. Army military command charged with coordinating the defense of the West Coast of the United States, ordered "all persons of Japanese ancestry, including aliens and non-aliens" to relocate to internment camps. However, a 23-year-old Japanese-American man, Fred Korematsu, refused to leave the exclusion zone and instead challenged the order on the grounds that it violated the Fifth Amendment.

In a majority opinion joined by five other justices, Associate Justice Hugo Black held that the need to protect against espionage by Japan outweighed the rights of Americans of Japanese ancestry. Black wrote that "Korematsu was not excluded from the Military Area because of hostility to him or his race", but rather "because the properly constituted military authorities ... decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast" during the war against Japan. Dissenting justices Frank Murphy, Robert H. Jackson, and Owen J. Roberts all criticized the exclusion as racially discriminatory; Murphy wrote that the exclusion of Japanese "falls into the ugly abyss of racism" and resembled "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy."

The Korematsu opinion was the first instance in which the Supreme Court applied the strict scrutiny standard of review to racial discrimination by the government; it is one of only a handful of cases in which the Court held that the government met this standard. Korematsu's conviction was voided by a California district court in 1983 on the grounds that Solicitor General Charles H. Fahy had suppressed a report from the Office of Naval Intelligence which stated there was no evidence that Japanese Americans were acting as spies for Japan. The Japanese-Americans who were interned were later granted reparations through the Civil Liberties Act of 1988. In Trump v. Hawaii (2018), the Supreme Court overruled Korematsu v. United States.

Background

In the wake of the Japanese attack on Pearl Harbor and the report of the First Roberts Commission, President Franklin D. Roosevelt issued Executive Order 9066 on February 19, 1942, authorizing the War Department to create military areas from which any or all Americans might be excluded, and to provide for the necessary transport, lodging, and feeding of persons displaced from such areas. On March 2, 1942, the U.S. Army Lieutenant General John L. DeWitt, commander of the Western Defense Command, issued Public Proclamation No. 1, demarcating western military areas and the exclusion zones therein, and directing any "Japanese, German, or Italian aliens" and any person of Japanese ancestry to inform the U.S. Postal Service of any changes of residence.Qtd. in Further military areas and zones were demarcated in Public Proclamation No. 2.

In the meantime, Secretary of War Henry L. Stimson mailed to Senator Robert Rice Reynolds and House Speaker Sam Rayburn draft legislation authorizing the enforcement of Executive Order 9066. By March 21, Congress had enacted the proposed legislation, which Roosevelt signed into law. Qtd. in On March 24, 1942, Western Defense Command began issuing Civilian Exclusion orders, commanding "all persons of Japanese ancestry, including aliens and non-aliens" report to designated assembly points. With the issuance of Civilian Restrictive Order No. 1 on May 19, 1942, Japanese Americans were forced to move into relocation camps.

Meanwhile, Fred Korematsu was a 23-year-old Japanese-American man who decided to stay at his residence in San Leandro, California, instead of obeying the order to relocate; however, he knowingly violated Civilian Exclusion Order No. 34 of the U.S. Army, even undergoing plastic surgery in an attempt to conceal his identity. Korematsu argued that Executive Order 9066 violated the Fifth Amendment to the United States Constitution and was thus unconstitutional. The Fifth Amendment was selected over the Fourteenth Amendment due to the lack of federal protections in the Fourteenth Amendment. He was arrested and convicted. No question was raised as to Korematsu's loyalty to the United States. The Court of Appeals for the Ninth Circuit eventually affirmed his conviction, and the Supreme Court granted certiorari.

Decision Black's majority opinion

The decision of the case, written by Justice Hugo Black, found the case largely indistinguishable from the previous year's Hirabayashi v. United States decision, and rested largely on the same principle: deference to Congress and the military authorities, particularly in light of the uncertainty following Pearl Harbor. Justice Black further denied that the case had anything to do with racial prejudice: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.

In his diaries, Justice Felix Frankfurter reported that Justice Black told the justices as reason for deferring to the executive branch: "Somebody must run this war. It is either Roosevelt or us. And we cannot."Stephen Breyer: America’s Courts Can’t Ignore the World. In: The Atlantic, September 2018

While Korematsu is regularly described as upholding the internment of Japanese Americans, the majority opinion expressly declined to reach the issue of internment on the ground that Korematsu's conviction did not present that issue, which it said raised different questions. The Court cross-referenced its decision the same day in Ex Parte Endo, 323 U.S. 283 (1944), in which the Court ruled that a loyal Japanese American must be released from detention.

Frankfurter's concurrence

Justice Frankfurter's concurrence reads:

[W]ithin their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The war power of the United States, like its other powers... is subject to applicable constitutional limitations", Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. 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. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177. 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.

Murphy's dissent

Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism", and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy." Murphy argued that collective punishment for Japanese Americans was an unconstitutional response to any disloyalty that might have been found in a minority of their cohort. He also compared the treatment of Japanese Americans with the treatment of Americans of German and Italian ancestry, as evidence that race, and not emergency alone, led to the exclusion order which Korematsu was convicted of violating:I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. 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.

Justice Murphy's two uses of the term "racism" in this opinion, along with two additional uses in his concurrence in Steele v. Louisville & Nashville Railway Co., decided the same day, are among the first appearances of the word "racism" in a United States Supreme Court opinion. The first appearance was in Justice Murphy's concurrence in . The term was also used in other cases, such as and . It then disappeared from the court's lexicon for 18 years before reappearing in .

Justice Murphy's dissent is considered the strongest of the three dissenting opinions and, since the 1980s, has been cited as part of modern jurisprudence's categorical rejection of the majority opinion.Anita S. Krishnakumar, On the Evolution of the Canonical Dissent Rutgers Law Review 52, no. 3 (Spring 2000): 781-826

Roberts's dissent

Justice Roberts's dissent also acknowledges the racism inherent in the case although he does not use the word. He recognized that the defendant was being punished based solely upon his ancestry:This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, 320 U.S. 81, [p. 226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, 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. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

Jackson's dissent