Fred Korematsu, a native-born American citizen of Japanese descent, was convicted for not reporting to a concentration camp as directed. He challenged his conviction, but in Korematsu, the Supreme Court upheld it by a 6-3 vote. “The military authorities considered that the need for action was great, and time was short,” wrote Justice Hugo Black for the Court.
Justice Frank Murphy argued in dissent that the government’s actions—excluding all people of Japanese ancestry from the West Coast “on a plea of military necessity”—were plainly unconstitutional and fell “into the ugly abyss of racism.” But Black brushed aside the charge: “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue,” he wrote.
A federal district court judge vacated Korematsu’s conviction in 1984, writing that Korematsu had “very limited application” as a legal precedent, and as a historical precedent, it served as a cautionary tale. Congress formally apologized for the injustice of internment a few years later, enacting the Civil Liberties Act of 1988 and providing $20,000 each to formerly incarcerated Japanese Americans as reparations.
Korematsu regained salience during Trump’s first administration, though, when the Supreme Court’s five conservatives reversed a lower court decision barring enforcement of Trump’s Muslim ban. Like Korematsu, that case, Trump v. Hawaii, concerned an executive order restricting the movement of members of a minority group for purported security reasons. And in both cases, Justice Sonia Sotomayor wrote in dissent, the Court accepted the government’s “misguided invitation” to “sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security.”
Chief Justice John Roberts, writing for the majority, nevertheless rejected Sotomayor’s comparison of Trump v. Hawaii to Korematsu as “wholly inapt.” A “facially neutral policy denying certain foreign nationals the privilege of admission,” Roberts said, is different from the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race,” which he called “objectively unlawful and outside the scope of Presidential authority.”
Still, Roberts said, the Court would take “the opportunity to make express what is already obvious”: that Korematsu was “gravely wrong the day it was decided.” Quoting Justice Robert H. Jackson’s dissent in Korematsu, Roberts declared that the case had “been overruled in the court of history and—to be clear—‘has no place in law under the Constitution.’”
But Roberts’s legal analysis was limited to a single sentence that left much unsaid. The World War II internment camps held both citizens and noncitizens, for example, and Roberts’s opinion did not say if it is “objectively unlawful” to shuffle noncitizens into concentration camps—or to torture facilities in El Salvador. The Court did not say if putting citizens into camps is “objectively unlawful” if race is one of multiple reasons for confinement, but not the sole reason. And the Court did not say if camps are “objectively unlawful” if race is the sole basis for confinement, but the president did not say so explicitly.
For people living under a white supremacist government, that would be a useful thing to know.