CBA Record March-April 2023

CBA NEWS

Korematsu v. United States: Fred Korematsu and His Fight for Justice By Trisha M. Rich, CBA Record Editorial Board Member

A live trial reenactment of Kore matsu v. United States was jointly sponsored by the CBA's DICE Committee (Diversity, Inclusion, Cul ture, Equity, and Engagement), the Young Lawyers Section, and the Japanese American Bar Association of Chicago. Following the Japanese Navy's attack on Hawaii's Pearl Harbor on December 7, 1941, then-President Franklin D. Roo sevelt issued an Executive Order autho rizing the Secretary of War to designate specific geographic areas as military zones and incarcerate nearly 120,000 Japa nese Americans in internment camps, in response to fears that Japanese Ameri cans would be sympathetic to Japan and engage in espionage activities adverse to the United States. Korematsu, who was born in Oakland, California, was the son of Japanese par ents who had immigrated to the United States in 1905. He was 23 years old when Executive Order 9066 was issued. In May 1942, Japanese Americans were ordered to report to centers to prepare for being forced into the internment camps. Kore matsu refused to comply, and instead

went into hiding. Later that month, he was arrested while walking down a street in San Leandro, California, on suspi cion of being Japanese. Korematsu was charged under a federal law that criminal ized noncompliance with military reloca tion orders. At the time of Korematsu's arrest, the San Francisco office of the American Civil Liberties Union was being led by Execu tive Director Ernest Besig, who had read several local newspaper articles related to the arrest. Besig visited Korematsu in jail to see if Korematsu would be willing to challenge the constitutionality of his arrest; Korematsu agreed. Korematsu's criminal trial took place in September 1942. At the trial, Kore matsu testified that he had tried to regis ter for the draft to volunteer for the Navy, that he was "ready, willing, and able to bear arms" for the United States, and that he couldn't read or write Japanese and had never been to Japan. Nonetheless, the federal judge found Korematsu guilty, sentenced him to five years of probation, and sent him to an internment camp located in San Bruno, California.

Korematsu appealed the case to the U.S. Court of Appeals for the Ninth Circuit, which upheld the trial court's decision that Korematsu had violated military orders. Korematsu was granted cert, and the Supreme Court heard his case in October 1944. Two months later, a 6-3 Supreme Court decision, written by Justice Hugo Black, upheld Kore matsu's conviction, ruled that the evacu ation order was valid, and found that it was unnecessary to address Korematsu's claims of race discrimination. The major ity acknowledged that because the order applied only to people who were Japa nese or of Japanese decent it was subject to strict scrutiny, but found that the due to the "grave imminent danger to public safety," there was a sufficient relationship between the order and the prevention of espionage. In a fiery descent, Justice Robert Jackson wrote that Korematsu was "convicted of an act not commonly thought a crime. It consisted merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived." Justice Jackson wrote that the exclusion

8 March/April 2023