In 1942, the Supreme Court decided United States v. Korematsu, putting the final stamp of approval on the displacement and internment of Japanese citizens and immigrants. Throughout history this decision has been largely considered one of the most shameful and racist decisions made by the Supreme Court. While that is true and should not be undermined, the reality is that the Court was not acting in a vastly powerful way, but was rather conceding to the government and military out of fear of harming its credibility and institutional standing. Lemieux and Lovell argue that one should not let an “obsession with Judicial Review lead to overlooking other ways judges shape policy” (13). This is evident in Korematsu, as the Court did not make or overturn any policy, but rather, affirmed the internment policy through proving its loyalty to the military and government. In so doing, the Court demonstrated the notion that its legitimacy rests upon public opinion and trust. This turmoil is especially evident when looking at internal debates between justices, external pressures, and the shaky constitutional standing on which Korematsu was decided.

 

Korematsu was among a group of cases involving Japanese Americans World War II, many of which were constrained by public perception and internal debate. For example, Hirabayashi, which affirmed the curfew for the Japanese also led to grave disagreement among the justices. After contentious debate, Hirabayashi was decided unanimously, in large part due to concerns around the public perception of the court. Chief Justice Stone was concerned with Justice Murphy’s dissent and Justice Douglas’ concurring opinion in Hirabayashi. Stone worked tirelessly to make this a unanimous decision by incorporating some concerns into the majority opinion and eventually convincing Murphy to turn his dissent into a concurrence. However, the concurrence largely read like a dissent, where Murphy claimed that the military was at the “very brink of constitutional power,” and saw these actions as “thinly-veiled racism” (Grossman).  Justice Frankfurter, with the majority, was diligent in diminishing Murphy’s dissent. Frankfurter specifically called upon Murphy to concede by appealing to his “eagerness for the austere functions of the Court” and the desire to “maintain and enhance the corporate reputation of the Court” (Grossman). This back and forth between Murphy and Frankfurter proved how highly the Court valued consensus in order to present as a strong, reliable branch of government, and wanted the Court to be seen as a body working with the government, rather than in opposition to it. This debate continued with Korematsu.

 

In Korematsu there was deep division among the justices that was irreconcilable, leading to a 6-3 decision. The decisions made and opinions written in this case can be attributed to the inability of the Court to reach consensus and each justice’s outlook on court power and what role the Court should play in times of national crises. Even among the majority and dissenting opinions there was a lack of consensus, leading to Justice Frankfurter to write a separate concurring opinion and each dissenter to write a separate opinion. Murphy’s dissent was the most critical of the decision and made a point to debunk all of the false claims made in General DeWitt’s report, which largely served as the foundation of the case. As Grossman notes, Murphy was generally comfortable deferring to the military, however, he was enraged by the fact that the Court would rely on such unreliable evidence, demonstrating his near disillusionment of the decision (4). Another dissent came from Justice Jackson. Instead of attacking the majority opinion, he instead attacked the whole notion that this case was even to be heard by the Court. From Jackson’s perspective, “a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority,” (Jackson).  Lastly, Frankfurter’s concurrence was in direct response to the dissents, likely as a method of invalidating those opinions to the public. The persuasion tactics used in Hirabayashi and debate-like opinions in Korematsu are evidence that the most important element to members of the Court was public perception and maintenance of power. Justice Frankfurter, in both cases advocated for a unified court as he was concerned that such division and contention would contribute to the public losing trust in the Court.

 

There was vast external pressure, coming from the government, on the Court to decide Korematsu in the way it did. As noted in the Los Angeles Times, the actions taken were largely in response to Congressional actors, specifically, Senators and Representatives of the states most affected, California, Washington, and Oregon (Los Angeles Times). Daniels also contends that members of Congress were placing great pressure upon the government to “‘do something’ about the West Coast Japanese,” and “‘deporting every Jap,’” (Daniels, 35). Another notable element was the type of journalism taking place around this period pertaining to the Japanese. The Los Angeles Times published numerous articles with headlines ranging from, “Jap and Camera Help in Bay City,” to “Japanese Here Sent Vital Data to Tokyo,” (Daniels, 29). With the harmful journalistic tropes in conjunction with the political pressure, the public opinion was notable and unavoidable. Further, while General DeWitt’s report has since been debunked, at the time, its accuracy was not questioned, and was said to have been “vindicated completely,” (Los Angeles Times). This likely contributed to the decision made by the Court as its authority and legitimacy relies, in massive part, on its perception by and trust from the public. With such a vast consensus coming from other branches of government as well as the public, it is not difficult to imagine that the Court felt it necessary to decide as it did.

 

The last element of this debate is the controversial constitutionality of the decision, further demonstrating that the decision was made with questionable intentions. First, the Justices were aware that General DeWitt’s report was made up of falsified claims about the so-called Japanese threat, demonstrating an almost blind obeisance to outside actors, even when inaccurate (Grossman, 4). Second, there was great dispute over the lack of martial law and individual inquiry and the repercussions of such behavior. One of the most explicit examples where due process was infringed upon was the “spot checks,” where home and business searches were authorized without a warrant. These checks were authorized by United States Attorneys and perfectly exemplify the elimination of individual inquiry as all Japanese properties were now subject to searches without due process. Further the decision in Ex Parte Endo, written by Chief Justice Stone, argued that once an individual proved their loyalty, there were no legal grounds to continue holding them. This case, however, was not applied on a greater scale and was confined strictly to Endo. The confinement of this decision can be largely attributed to the Court’s claims that authorities were unable to “bring about an immediate segregation of the disloyal from the loyal,” and DeWitt’s false claims that a loyalty review would be both impossible and ineffective (Grossman). Given this, it is difficult to imagine that the decision made by the court was derived with legal precedent but, rather, external forces.

 

In conclusion, the Court was deeply concerned about its ability to remain relevant and maintain legitimacy. In order to combat this concern, a majority of justices felt as though they had to work with government. That can explain why the Court was so quick to acquiesce to the will of the government, the military and public opinion, proving Lemieux and Lovell’s point that the Court’s power is not based solely in judicial review. Instead, the Court’s power lies handily in the constraints of public opinion, governmental actors and internal debate. Therefore, it can be argued that the Court was not powerful in its decision of Korematsu but, rather, decided the case in order to preserve its power.