Issue 5: Fred Korematsu v. United States


This is the fifth issue of “The Supreme Court is Usually Badass” (the first example where, in my opinion, the Supreme Court was not badass), where I discuss a Supreme Court case and my opinion on its effects throughout U.S. History. I would also enjoy others to participate and discuss the decisions of the case, if one feels so inclined.

Fred Korematsu v. United States 323 U.S. 214 (1944) (


During World War II, Japanese-Americans were forced to relocate to internment camps, as stated by Civilian Restrictive Order Number 1, 8 Federal Regulation 982 ( This regulation was based upon Executive Order 9066 ( Fred Korematsu, in an act of planned civil disobedience, did not relocate himself to a Japanese internment camp. In his opinion, Executive Order 9066 was unconstitutional and violated his rights under the Fourteenth Amendment to the U.S. Constitution, which states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Korematsu was convicted for his defiance, The Circuit Court of Appeals for the Ninth Circuit confirmed his conviction, and the U.S. Supreme Court filed a writ of ceriorari (higher court directing a lower court to send the given case for review). Hilarity ensues.

The U.S. Supreme Court heard the oral arguments for Korematsu v. United States on October 11-12, 1944.

Synopsis of Proceedings

The Solicitor General, Neal Katyal, curiously accused his predecessor, Solicitor General Charles Fahy of withholding evidence (made the case more fun). This accusation is generally considered to be a terrible mistake on the part of Solicitor General Neal Katyal.

Questions before the Court:

  1. Is holding Japanese-American citizens in internment camps during wartime by the U.S. government constitutional under the Fourteenth Amendment?


On December 18, 1944, the High Court ruled in a 6-3 decision that the actions of the U.S. government were constitutional with respect to the Fourteenth Amendment. Justice Hugo Black issued the opinion of the court, stating:

“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.”

This was the first time that the strict scrutiny test ( was applied by the U.S. Supreme Court to justify racial discrimination. As is the case with most of the dissents in anti-progressive racial discrimination cases, the dissenters are quite vehement in their opinion. Justice Frank Murphy issued his dissent, stating:

“I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.”

Justice Robert Jackson issued a separate dissent, stating:

“Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists 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. […] [H]is 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. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.”


Korematsu v. United States has yet to be explicitly overturned (because the U.S. government has not, as of yet, repeated such heinous actions). As such, if the U.S. government were to begin a war with Ireland and subsequently intern Americans of Irish descent, then Korematsu v. United States is the current precedent by which the U.S. Supreme Court would judge the U.S. government’s actions. Let us hope that the U.S. Supreme Court is a little more badass the next time an issue like this comes up.