Friday, July 24, 2015

A Satchel of Embarrassments: Hugo Black and Korematsu v. United States

Hugo Lafayette Black
Fred Korematsu's mom gave birth to him in the United States. Fred lived in San Leandro, California. After the attack on Pearl Harbor and the subsequent declaration of war on Japan, on March 21, 1942, Congress enacted a new criminal law making it a misdemeanor criminal offense to disobey certain exclusionary orders that might be issued by the President or his designees:
[W]hoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. [56 Stat. 173]
Congress acted after President Roosevelt had issued an Executive Order authorizing the Department of War to issue and enforce orders of exclusion. Both the March 1942 statute and the previous Executive Order contemplated the recognition of certain areas of military importance, and, the risk that places of military importance might be subject both to espionage activities and sabotage.

So far, so good. The recognition of risk and the actions anticipating risk taken to ameliorate them are perfectly sensible. What followed, however, was a dark chapter in our history, and reflected an indelible stain of racism on Hugo Black.

Fred Korematsu, as I said, lived in San Leandro. San Leandro sits on the San Francisco Bay, directly across from San Francisco and immediately south of Alameda. Based on residence, he was required by Order of the Military Authority to report to a designated facility and thereafter to be transported to a new place of residence. Fred did not report as required.

It is important to note, and Justice Black's opinion does so, that there was never any question about Fred's loyalty to the United States. He was subject to exclusion solely based on his ancestry. A federal court convicted him of the misdemeanor offense and the federal appeals court affirmed. Because the Court considered that Fred's appeal presented important constitutional questions, it agreed to hear the appeal.

Justice Hugo Black came to the Supreme Court because he had been a progressive voice of support for FDR's economic recovery programs in the US Senate. His nomination raised consternation because he had, for a period of time, been a member of the Ku Klux Klan. On the Court, Korematsu to the side, Black set his own course of strict application of the text of the Constitution. He took seriously the language of the Constitution that "Congress shall make no law" on many topics. Where other justices applied balancing tests to decide the legitimacy of statutes restricting speech, press and other fundamental constitutional rights, Black was the Court's absolutist.

Given his absolutism, and his commitment to a textual reading of the Constitution, it is hard to grasp how Black found himself affirming the conviction of an American whose crime was to be in a place where other Americans could be, solely on the ground of his Japanese ancestry. Perhaps because this decision was so inconsistent with his general legal philosophy, the essence of his opinion just meanders along to an end that does nothing more than say, it was not an act of racism because we are at war:
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.
Three Justices dissented from the Court's decision. Justice Murphy pointedly called out the true nature of the Orders that targeted Fred and other Americans of Japanese descent as patently racist:
This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power," and falls into the ugly abyss of racism.
Justice Jackson, whose head goes into the bag immediately below this discussion, explained how that racism was evidenced by the exclusion order:
Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.
A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four -- the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole -- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.
Hugo Lafayette Black did not maintain a lifetime membership in the Ku Klux Klan. In 1937, as furor arose over revelations of his prior membership in the KKK, Justice Black took the extraordinary step of making a radio address to the Nation. At the time, the only radio address to reach a larger audience was that for the King's abdication in England. Justice Black repudiated religious and racial biases. I suppose Korematsu is best understood as Justice Black having forgotten his 1937 speech.