An effort was launched Wednesday urging the U.S. Supreme Court to repudiate the decisions it handed down nearly 70 years ago upholding the government’s internment of Japanese-Americans during World War II.
Supreme Court historian Peter Irons, who represented Fred Korematsu and Gordon Hirabayashi in earlier efforts to overturn the rulings, is behind the new campaign. On Wednesday, he submitted to each Supreme Court justice a paper he has written titled Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The decisions, Irons asserts, "left a stain on the Court’s integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government—to their credit—have now done." Both Congress and the executive branch have repudiated the internment program, and monetary reparations have been given to the fast-diminishing number of surviving former internees.
In an interview, Irons said, "I will ask the court to read and consider what I’ve written and consult with their colleagues to discuss whether some kind of statement is warranted." Irons, a retired professor at the University of California at San Diego, is the author of numerous books about the court.
Irons is joined by other court scholars including Erwin Chemerinsky, dean of University of California, Irvine School of Law; Cornell Law School’s Michael Dorf, Deborah Rhode of Stanford Law School, Norman Dorsen of New York University School of Law and Kermit Roosevelt III of the University of Pennsylvania Law School. Roosevelt is distantly related to President Franklin D. Roosevelt, who first authorized the internment.
Irons timed his effort to coincide with the 70th anniversary on June 21 of Hirabayashi v. United States and Yasui v. United States, which upheld the criminal convictions of Japanese Americans who violated curfew. The next year, the court issued Korematsu v. United States, which upheld another conviction for refusal to obey an internment order.
Irons emphasized that his plea to the court is based on the fact that the court was "deceived and misled" by the government in the briefing and arguments in the internment case. "The point is not that it was wrongly decided," he said. "The misconduct of the government is the grounds for this."
In earlier proceedings, Irons established that the government destroyed records that would have revealed the racial motivation behind the internment program, and falsified espionage charges that it used to justify the "military necessity" for the internment. Extensive "coram nobis" error-correction litigation during the 1980s succeeded in having the convictions of Hirabayashi and Korematsu overturned in lower federal courts. But the government did not appeal those decisions to the Supreme Court, in effect depriving the high court of an opportunity to overturn the decisions explicitly.
Nonetheless, Irons decided to try again to urge high court action after then-acting solicitor general Neal Katyal issued an extraordinary "confession of error" in the internment cases in May, 2011. "Those decisions still stand today as reminders of the mistakes of that era," Katyal wrote on the Justice Department blog. "Today, our office takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court."
Said Irons, "That got me thinking about it again and I wrote it up" in the form of an article directed mainly at the nine justices. Irons acknowledged that the effort is "definitely an uphill climb." The court by longstanding tradition "only speaks through its decisions," Irons said, and with no active internment case before the court, it has no ready vehicle for formally overturning the decisions. But he argued that the court has "both the inherent power and duty" to correct the flawed decisions in whatever way it chooses.
One possible but remote avenue could be the court’s rarely used practice of correcting factual errors in past rulings on request. In Kennedy v. Louisiana, a 2008 case striking down the death penalty for child rape, the court in its review of existing laws omitted the fact that child rape was punishable by death under military law. It later added an asterisked footnote on page 15 mentioning the omission but stating that it did not affect the outcome of the case.
Individually, most current justices have repudiated the decisions explicitly or otherwise, according to Irons. Asked during his 2005 confirmation hearing whether he could ever envision upholding an internment program based on racial classifications, Chief Justice John Roberts Jr. said, "I would be surprised if there were any arguments that could support it." Justice Antonin Scalia has called the Korematsu ruling "horrible," and Justice Elena Kagan pointed to the decision when asked to name a "poorly reasoned" decision in the court’s recent history.
The closest the court has come to formally repudiating the internment rulings came in the 1995 affirmative action case Adarand v. Pena. "Korematsu demonstrates vividly that even ‘the most rigid scrutiny’ can sometimes fail to detect an illegitimate racial classification," Justice Sandra Day O’Connor wrote for the majority. "Any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future."
Irons has had previous interactions with the Supreme Court. In 1993, he provoked the ire of then-Chief Justice William Rehnquist by publishing May It Please the Court, a book-and-tapes compilation of historic Supreme Court oral arguments, using audio he copied at the National Archives. The court issued a statement asserting that Irons had violated the rule that the tapes were only for private research and teaching purposes. The court hinted at legal action against Irons, but eventually retreated and has since made the audio of oral arguments generally available.
Tony Mauro can be contacted at email@example.com.