DENYING PREJUDICE: INTERNMENT, REDRESS, AND DENIAL Jerry Kang In the early 1980s, Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi marched back into the federal courts that convicted them during World War II for defying the internment of persons of Japanese descent. Relying on suppressed exculpatory evidence discovered in the national archives, they filed writs of error coram nobis to overturn their convictions. Remarkably, this litigationwas successful and fueled the extraordinary redress movement, which culminated in federal reparationsfor surviving internees. Yet, a dark side to this victory has never been discussed, until now. In grantingthe petitions, the Judiciaryabsolved the one branch of government that has never been held accountable for the internment: itself. Specifically, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by conniving officials in the Departments of War and Justice, who suppressed "smoking gun" evidence. But this tidy story is nonsense. The wartime Court was no innocent. It was a full participantin the internment machinery, and it deployed its enormous intellectual resources to avoid interfering with the internment, while at the same time, never grantingit official approval. The Court also made certain that blame would fall not on President Franklin Delano Roosevelt or on Congress, but instead on the little known War Relocation Authority, which was labeled a rogue agency. This is what the Court did in the 1940s, exploiting procedure-like tools often extolled as "passive virtues." The Judiciary has never accepted responsibility for its machinations. After the coram nobis cases, official history has been rewritten to make any apology simply unwarranted. In this way, the personal victories of Korematsu, Yasui, and Hirabayashi were ironically exploited to complete the circle of absolution the Supreme Court began in the 1940s. This Article provides a more nuancedand disturbinginterpretationof the internment, * Visiting Professor of Law, Harvard Law School; Professor of Law, UCLA School of Law. The author may be contacted at kang@law.ucla.edu; additional information is available at http:// wwwl.law.ucla.edu/-kang. I thank Tom Moss, who provided first-rate research assistance. The Hugh and Hazel Darling Law Library provided expert help as always. This project was funded in part by the UCLA Academic Senate as well as a grant from the UCLA Asian American Studies Center. This Article, in various incarnations, was delivered to audiences at Northeastern, UCLA, Stanford, and the U.S. Attorney General's Office in Los Angeles. Thanks to Rick Abel, Stuart Banner, Devon Carbado, Ron Chen, Michele Landis Dauber, Carole Goldberg, Margaret Chon, Richard Fallon, Laura G6mez, Kenneth Karst, Judith Koffler, Jennifer Martinez, Frank Michelman, Eric Muller, Karen Narasaki, Gary Rowe, David Shapiro, Joseph Singer, Jay Tidmarsh, Laurence Tribe, Led Volpp, Eric Yamamoto, Stephen Yeazell, and Alfred Yen for their valuable comments. This Article isdedicated to Fred Korematsu, Gordon Hirabayashi, Minoru Yasui, Mitsuye Endo, and the lawyers who fought and won the cormn nobis cases. 934 51 UCLA LAW REVIEW 933 (2004) the Judiciary,and the coram nobis cases. It also sheds critical light on discussions of military exigency, racism, the role of the Judiciary, and the lessons of history in a post-September 11 world. INTRODUCTION ............................................................................................................. 934 I. DENIAL AND ABSOLUTION ..................................................................................... A. The Internment Machine .............................................................................. B. Den ial ............................................................................................................. 1. Curfew: Hirabayashiand Yasui ................................................................ 2. Exclusion: Korematsu .............................................................................. 3. An Aside on Racism ............................................................................... C. Absolution: Endo ............................................................................................ D. Objection: The "Minimalist Virtues". ........................................................... 1. Democratic Accountability .................................................................... 2. Political Expediency ............................................................................... II. VINDICATION AND Loss ........................................................................................ A. Vindication: Seeing Prejudice ....................................................................... 1. The Suppressed Evidence ....................................................................... 2. The Coram Nobis Litigation ................................................................... B. Loss: Denying Prejudice ................................................................................. 1. Evacuation .............................................................................................. 2. C urfew .................................................................................................... C. The Path Not Taken ...................................................................................... 937 937 943 943 949 955 958 965 966 970 975 976 976 979 985 986 994 995 III. TRUTH AND CONSEQUENCE .................................................................................. 997 A. T ruth .............................................................................................................. 99 7 B. Consequence ...................................................... 999 CONCLUSION ............................................................................................................... 1004 APPENDIX: COULD THE NINTH CIRCUIT IN THE HIRABAYASHI CORAM NoBIs CASE HAVE DONE OTHERWISE? ..................................... .. .. ... .. ... .. ... .. .. ... .. ... .. ... 1006 A. Options Matrix ............................................................................................. B. The Prejudice Precedent .............................................................................. 1006 1008 INTRODUCTION By all accounts, what happened in the courtroom of Judge Marilyn Patel on November 10, 1983 was astonishing. Convicted in 1942 for refusing internment, Fred Korematsu returned four decades later to the San Francisco federal district court that had branded him a criminal. Invoking the recondite writ of error coram nobis, his attorneys argued that his conviction should be overturned because of "smoking gun" evidence recently discovered in the national archives. That evidence showed that the Executive Branch had suppressed critical exculpatory evidence during the original criminal proceedings Internment, Redress, and Denial 935 in which Fred Korematsu and three other defendants challenged the intemment's constitutionality. On that eventful day, after months of delay by the U.S. government, Fred Korematsu was finally allowed to make his case to a packed courthouse. Addressing the court, he made a simple request: "I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed or color."' Judge Patel stunned the audience by granting the petition and vacating Korematsu's conviction. With eloquence, she explained that Korematsu "stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. ' Barely able to contain their enthusiasm 3 and some in tears, the audience felt they had achieved an "impossible dream." This victory and the other coram nobis cases of Minoru Yasui and Gordon Hirabayashi were extraordinarily significant. They added crucial momentum to the redress movement that culminated in the path-breaking 1988 Civil Liberties Act, which provided both an official government apology and $20,000 in reparations for each surviving internee.4 By any metric, the coram nobis cases were remarkable successes. Specific wrongs, such as the suppression of evidence, were identified, and unjust convictions vacated. Yet, there was a dark lining to this silver cloud that has never before been exposed. In granting victory to the petitioners in the coram nobis cases, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. In overturning these convictions, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by bad apples in the Departments of War and Justice, who suppressed exculpatory evidence. If the wartime Supreme Court opinions were trash, it was because of the incomplete information the Court was provided: garbage in, garbage out. But this tidy story isnonsense. The wartime Court was no innocent tricked by conniving lawyers. It was a full participant in the internment machinery, and 1. ERIC K. YAMAMOTO, MARGARET CHON, CAROL L.IZUMI, JERRY KANG & FRANK H. Wu, RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT 283 (2001) [hereinafter RACE, RIGHTS AND REPARATION]. 2. Id. 3. This phrase comes from the title of MITCHELL T. MAKI ET AL., ACHIEVING THE IMPOSSIBLE DREAM: HOW JAPANESE AMERICANS OBTAINED REDRESS (1999). 4. The Civil Liberties Act gave compensation only to those who were U.S. citizens or permanent residents. This left out the thousands of ethnic Japanese who were abducted from their homes in Latin America and interned in the United States. For that odd and sad story, see Natsu Taylor Saito, Justice Held World War II Internment of Japanese Peruians-A Case Hostage: U.S. Disregardfor InternationalLaw in the Study, 40 B.C. L REV. 275 (1998). 936 51 UCLA LAW REVIEW 933 (2004) it deployed its enormous intellectual resources to avoid interfering with the internment, while at the same time, never granting the internment official approval. Respectful of its sister branches of government, the Court also made certain that blame would not fall at the feet of President Franklin Delano Roosevelt or on the Congress. Instead, it thrust responsibility upon the little known War Relocation Authority, ridiculously characterized as a rogue agency. This is what the Court did in the 19 40s. And as I show in Part I, it did so with tremendous acumen, exploiting what are typically praised as the "passive virtues."5 For its machinations, the Judiciary has never apologized or accepted responsibility. Although the more political branches have expressed regret and paid reparations, the Judiciary has never faced up to its past, and indeed prominent jurists such as the sitting Chief Justice have provided apologia, not apology.6 After the coram nobis cases of the 1980s, official history has been rewritten to make any apology unwarranted. In this way, the personal victories of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui have been ironically exploited to complete the circle of absolution the Supreme Court began in the 1940s. I want to be clear: The coram nobis cases were remarkable victories won by litigants and lawyers whom I deeply admire. They are my heroes. However, the apparent acceptance of responsibility manifested in the 1980s coram nobis cases was and is a mirage. To avoid misunderstanding or misuse of my argument, I emphasize that my critique of the coram nobis cases does nothing to rehabilitate the wartime opinions, which are and should remain ignominious precedents. But the reality is that, regarding the Judiciary, we do not have acceptance of responsibility; we have supreme denial. That is the counter-story told in Part II. What is the payoff of this more nuanced and disturbing interpretation of the internment, the Judiciary, and the coram nobis cases? Put another way, what flows from better appreciating intellectually and morally the sins of our Judiciary, the one branch of government that aspires to rise above mere politics and be the firewall against majoritarian tyranny? In Part III, I sketch out some preliminary answers in light of reparations theory and the revival of what I call the Korematsu mindset, post-September 11. 5. See infra Part I.D. 6. See infra Part III.B. One might object to my use of the term "Judiciary" because no institution is a monolith. To be sure, not all judges behaved the same way back in the 1940s or in the 1980s, and perhaps I paint with too broad a critical brush. Still, I think it appropriate to speak of both agency and responsibility in institutional terms, with the official actions of majorities of the highest court to address the issue representing the institutional line. In the 1940s, the official line isrepresented by the majority opinions in each of the four internment cases. In the 1980s, it is the Ninth Circuit's review of the Hirabayashicoram nobis opinion. Internment, Redress, and Denial 937 It has become trite to invoke Santayana's famous remark that those who forget history are destined to repeat it.' Nevertheless, it bears repeating that the same goes for those who deny responsibility for history's wrongs. This Article is an intervention to make that denial more difficult, and the self-congratulatory and self-mystifying rhetoric of the Judiciary more comical. I. DENIAL AND ABSOLUTION A. The Internment Machine Before September 11, the day of infamy was December 7 in the year 1941.8 The attack on Pearl Harbor left approximately 2300 dead, nearly twenty Navy ships destroyed, and chaos in our minds and fear in our hearts. Immediately, the United States declared war. Beginning that very day, the FBI arrested over two thousand Japanese resident aliens, who had been kept on a special list of people marked as potentially subversive and dangerous. This "ABC" list included nearly 9 all of the first-generation leadership of Japanese Americans. In January 1942, a report authored by sitting Supreme Court Justice Owen Roberts concluded inter alia that espionage by sleeper cells in Hawaii had aided the enemy attack. In the same month, pressure increased for radical solutions to the internal threat that the Japanese in America posed. For example, West Coast politicians, such as Representative Leland Ford of California, urged mass internment of the Japanese;1 prominent editorialists, such as Westbrook Pegler, "Progress, far from consisting in change, depends on retentiveness.. . when experience is not 7. retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it .... This is the condition of children and barbarians, in whom instinct has learned nothing from experience." RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS REQUESTED FROM THE CONGRESSIONAL RESEARCH SERVICE 245 (Suzy Platt ed., 1989) (quoting 1 GEORGE SANTAYANA, THE LIFEOF REASON 284 (1905)). What follows is a brief summary of the history. More detailed accounts can be found in RACE, 8. RIGHTS AND REPARATION, supra note 1, at 38--40, 96-102; COMM'N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED (1982) [hereinafter PERSONAL JUSTICE]; and various books written by Roger Daniels. See, e.g., ROGER DANIELS, CONCENTRATION CAMPS: NORTH AMERICA JAPANESE IN THE UNITED STATES AND CANADA DURING WORLD WAR 11 (1981) [hereinafter DANIELS, CONCENTRATION CAMPS]; ROGER DANIELS, THE POLITICS OF PREJUDICE: THE ANTIJAPANESE MOVEMENT IN CALIFORNIA AND THE STRUGGLE FOR JAPANESE EXCLUSION (1962); ROGER DANIELS, PRISONERS WITHOUT TRIAL JAPANESE AMERICANS IN WORLD WAR 11 (1993) [hereinafter DANIELS, PRISONERS]. The ABC list identified "potentially 'subversive' and 'dangerous"' individuals: "'A'for 'known 9. dangerous' aliens; 'B' [for] 'potentially dangerous,' and 'C' [for those with] pro-Japanese inclinations and propagandist activities." This list included community leaders, "Buddhist priests, and martial arts instructors." RACE, RIGHTS AND REPARATION, supra note 1, at 96. See DANIELS, PRISONERS, supra note 8, at 35. 10. 938 51 UCLA LAW REVIEW 933 (2004) did the same." Seeing a convenient opportunity to eliminate competition, 2 White-owned agricultural interests poured gasoline on the fire.' On February 14, 1942, General John L. DeWitt, in charge of the Western Defense Command, 3 made his final recommendation in favor of mass evacuation of Japanese Americans from the West Coast.'4 Shortly thereafter, on February 19, President Franklin Roosevelt issued Executive Order 9066, which authorized military commanders to designate military areas in the United States and to exclude any person from those areas." Although aware of the racially targeted evacuations to come, Roosevelt made no mention of the Japanese in his Executive Order.'6 11. See id. at 29 (recommending that, for every American hostage killed by Axis powers, the United States should kill one hundred internees in its concentration camps). 12. As an article in the Saturday Evening Post explained: We're charged with wanting to get rid of the Japs for selfish reasons. We might as well be honest. We do. It's a question of whether the white man lives on the Pacific Coast or the brown man. They came into this valley to work, and they stayed to take over.... If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either. Frank J. Taylor, The People Nobody Wants, 214 SATURDAY EVENING POST 24, May 9, 1942, at 66 (quoted in justice Murphy's dissent in Krematsu v. United States, 323 U.S. 214, 239 n. 12 (1944)). 13. At the time, the Western Defense Command included Washington, Califomia, Oregon, Idaho, Utah, Montana, Nevada, Arizona, and the Territory of Alaska. See, e.g., STETSON CONN ET AL., GUARDING THE UNITED STATES AND ITS OUTPOSTS 33 (2000), available at http://www.army.mi/ cmh-pg/books/wwii/Guard-US/index.htm; Lawrence E. Davies, San Francisco Put in Darkness Again, N.Y. TIMES, Dec. 13,1941, at 13. 14. See PERSONAL JUSTICE, supra note 8, at 82 (quoting portions of the recommendation memorandum titled Evacuation ofJapaneseand Other Subversive Persons From the Pacifc Coast). 15. The relevant language read: I hereby authorize and direct the Secretary of War, and the Military Commanders who he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942). According to Chief Justice Rehnquist, Secretary of War Henry Stimson received a blank check authorization, over the telephone, from Roosevelt on the issue, "to go ahead on the line that [he himself] thought the best." WILLIAM H. REHNQUIST, ALL TI-E LAWS BUT ONE 190 (1998). According to Attorney General Francis Biddle, Roosevelt did not struggle long and hard over this decision. See DOJRIS KEARNS GooDWIN, NO ORDINARY TIME. FRANKLIN AND ELEANOR ROOSEVELT: THE HOME FRONT IN WORLD WAR I 322 (1994) (Quoting Biddle as recalling, "I do not think [Roosevelt] was much concerned with the gravity or implications of this step .... He was never theoretical about things. What must be done to defend the country must be done."). 16. See GREG ROBINSON, BY ORDER OF THE PRESIDENT: FDR AND THE INTERNMENT OF JAPANESE AMERICANS 108 (2001) (pointing out that although the Executive Order did not mention the Japanese or evacuation by name, everyone understood "that the purpose of the order was to give the army the power to remove the Japanese Americans from the Pacific Coast"). For analysis of Roosevelt's motivations regarding internment and his racist views about the Japanese generally, see id. at 110-23, 238. Internment, Redress, and Denial 939 In late February, Congress also began to hold roving hearings, chaired by Representative John Tolan of California." Most witnesses at these "National Defense Migration" hearings spoke ill of the Japanese; in sharp contrast, wellknown witnesses expressed sympathy for those of German or Italian descent. 8 The mayor of San Author Thomas Mann spoke for anti-Nazi refugees.' 9 Francisco, Angelo Rossi, was an Italian American. Tolan himself encouraged testimony about Italian American Joe DiMaggio's honest and law-abiding 20 parents, who lived in the San Francisco area. Proclamations No. 121 In the first half of March 1942, DeWitt issued Public and No. 2,22 which designated military areas along all West Coast states, as well as Arizona, and warned of future evacuation. On March 21, Congress passed Public Law 503,23 which criminalized disobedience of duly authorized military regulations. This was the federal law under which Hirabayashi, Yasui, and Korematsu would be convicted. On March 24, DeWitt's Public Proclamation No. 324 instituted a curfew on all alien enemies and everyone of Japanese descent-alien and citizen alike. Three days later, DeWitt's Proclamation No. 425 prohibited Japanese from relocating out of the military areas at their own discretion. This "freeze order" made certain that they would leave only as the military dictated. Beginning March 24 and proceeding throughout the year, the first of 108 civilian exclusion orders were issued. These exclusion orders required 26 all Japanese Americans, aliens and "non-aliens," living in specified territories to report to specified evacuation centers. The evacuees were then warehoused for months in assembly centers run by the Army-ofren hastily converted fairgrounds and racetrack stalls, fit for animals but not families, especially those with infants, small children, and the elderly.27 As of April 7, 1942, after mountain and midwestern state governors viciously rejected the idea of resettlement-some warning of mass lynchings -it The hearings were held in front of the House of Representatives Select Committee Investigat17. ing National Defense Migration. See H.R. REP. No.77-2124 (1942). DANIELS, CONCENTRATION CAMPS, supra note 8, at 79. 18. See ALLAN R. BOSWORTH, AMERICA'S CONCENTRATION CAMPS 68 (1967). 19. DANIELS, PRISONERS, supra note 8, at 51. 20. Public Proclamation No. 1,7 Fed. Reg. 2320 (Mar. 26, 1942). 21. Public Proclamation No. 2, 7 Fed. Reg. 2405 (Mar. 28, 1942). 22. Act of Mar. 21, 1942, Areas or Zones, Restrictions, Pub. L No. 77-503, 56 Stat. 173 (1942). 23. Public Proclamation No. 3, 7 Fed. Reg. 2543 (Apr. 2, 1942). The curfew ran from 8pm to 6am 24. daily. Public Proclamation No. 4, 7 Fed. Reg. 2601 (Apr. 4, 1942). 25. Apparently, "non-alien" was more palatable than "citizen." 26. See RACE, RIGHTS AND REPARATION, supra note 1,at 199-202 (providing oral histories about 27. assembly centers, including incidents in which tour buses would stop at the centers to look at the Japanese Americans like "caged animals"). See id.at 196. 28. 940 51 UCLA LAW REVIEW 933 (2004) became clear that the assembled Japanese would be funneled indefinitely into "relocation centers." By June 1942, just six months into the war, 97,000 Japanese Americans had been rounded up, most of them held in assembly centers. In the first week of June, our crushing victory in the Battle of Midway made any West Coast invasion highly improbable. 9 Still, the internment machine continued to chum. By November, over 100,000 persons were forced from assembly centers into relocation camps.3" Of these, approximately 70 percent were U.S. citizens because of their birth in the United States." The others were indeed aliens, as is often mentioned by internment apologists, but their alien status was not by choice but perforce.32 At the time, federal law only allowed "free white persons" and persons of African descent to naturalize." And in 1922, the Supreme Court had made clear in Ozawa v. United States34 that regardless of how fair the flesh and how absolute the cultural assimilation,35 the Japanese were not White.36 29. Chief Justice Rehnquist claims that the relocation program was put into effect before the Battle of Midway. REHNQUIST, supra note 15, at 211. But Eric Muller points out with precision how this was not in fact the case: The overwhelming majority of evacuees did not board trains for the interior until at least six to twelve weeks after the Battle of Midway was won. So while the evacuation had been largely (albeit not entirely) completed by Midway, the internment-which would last three long years-had really not even begun. Eric L Muller, All the Themes but One, 66 U. CHI. L.REV. 1395,1413 (1999). 30. See PERSONALJUSTICE, supranote 8, at 149. 31. This right was secured by a Chinese litigant at the end of the nineteenth century. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) (holding that Chinese persons born in the United States were citizens under the Fourteenth Amendment's Citizenship Clause). 32. The Chief Justice is satisfied with the intemment of the first-generation Japanese because they were not citizens. REHNQUIST, supra note 15, at 209-10. He never points out, however, that federal naturalization law was not colorblind. I concede that even given the legal opportunity, some Japanese may have chosen not to naturalize. No one has good data on the percentage of who would have done what. We should remember, however, that "free" choice isalways exercised in context, and that this context was a racially hostile one. In other words, we should not minimize the impact of the federal bar on naturalization by supposing that some (many?) Issei would have chosen not to naturalize, because that choice was guided (ifnot determined) by society's marking them as racial outsiders who did not belong to America. 33. See RACE, RIGHTS AND REPARATION, supra note 1,at 36, 57-67. 34. 260 U.S. 178,198 (1922). 35. Ozawa wrote in his brief to the Supreme Court: In name, General Benedict Arnold was an American, but at heart he was a traitor. In name, I am not an American, but at heart I am a true American. I set forth the following facts that will sufficiently prove this. (1) 1 did not report my name, my marriage, or the names of my children to the Japanese Consulate in Honolulu; notwithstanding all Japanese subjects are requested to do so. These matters were reported to the American government. (2) I do not have any connection with any Japanese churches or schools, or any Japanese organizations here or elsewhere. (3) I am sending my children to an American church and American school in place of a Japanese one. (4) Most of the time I use the American (English) language at home, so that my children cannot speak the Japanese language. (5) I educated myself in American schools for nearly eleven years 941 Internment, Redress, and Denial 37 The ten "relocation" centers, euphemisms for concentration camps, were located in deserts or swamps, circumscribed by barbed wire and armed sentries. By no means were these "concentration camps" Nazi death camps." Still, conditions were deplorable, and contrary to the claims of Chief Justice Rehnquist,39 there were numerous incidents involving the physical brutality of military guards." In addition, without adequate medical care, many elderly, infirm, and infants suffered and died needlessly." The milieu was ironic and Kafkaesque. For instance, Japanese Americans were forcibly drafted out of camps to fight in Europe, in segregated battalions: They were disloyal enough to imprison but loyal enough to kill, and to die, for the country.42 Those who resisted the draft as absurd given their families' by supporting myself. (6) I have lived continuously within the United States for over twenty- eight years. (7) 1chose as my wife one educated in American schools... instead of one educated in Japan. (8) 1 have steadily prepared to return the kindness which our Uncle Sam has extended me... so it is my honest hope to do something good to the United States before I bid a farewell to this world. Yuji Ichioka, The Early Japanese Immigrant Quest for Citizenship: The Background of the 1922 Ozawa Case, 4 AMERASIA 1, 11 (1977). Ozau, 260 U.S. at 198. 36. In my analysis, I use the terms "curfew," "evacuation," and "relocation"-terminology 37. employed by the government during internment. I do so recognizing that these words are grotesque euphemisms. "Curfew" is "house arrest." "Evacuation" is "banishment," and it cannot be separated from "relocation," which, in turn, isa euphemism for "imprisonment." I use these obfuscatory terms because they have become terms-of-art in the judicial analysis that I critique. I use them ironically, recognizing that such linguistic evasion facilitated the segmentation strategy central to the Court's mischief. See infra Parts I.B. and I.C. (discussing the segmentation technique). This terminology has caused some controversy in the past. When an exhibition titled 38. America's Concentration Camps: Remembering the Japanese American Experience traveled to New York, there was some protest from Jewish groups that argued that the use of the term "concentration camps" was inappropriate. After negotiations, the title remained the same; however, an explanatory footnote was added to the title. See, e.g., ELAZAR BARKAN, THE GUILT OF NATIONS: RESfITuLON AND NEGOTIATING HISTORiCAL INJUSTcES 44 (2000). 39. See REHNQUIST, supra note 15, at 192 ('There was no physical brutality, but there were cer- tainly severe hardships...."). See, e.g., Muller, supra note 29, at 1408-09 (describing beatings, tear gas, and shootings). 40. 41. See, e.g., MEl T. NAKANO, JAPANESE AMERICAN WOMEN: THREE GENERATIONS 1890-1990, at 150 (1990) ("I carried my baby full-term but the camp's inadequate medical care, including the doctor's late arrival, intensified a complex birth. A better-staffed hospital environment might have prevented the hemorrhaging aggravated by a hasty, fatal delivery on a hard flat table while I endured indescribable pain." (quoting June Tsutsui, interned in Amache)); RACE, RIGHTS AND REPARATION, supra note 1, at 203 (describing open sewers and a lack of vaccines); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 365 & n.170 (1987) (citing stories of suffering caused by poor medical care relayed by John Tateishi in JOHN TATEISHI, AND JUSTICE FOR ALL: AN ORAL HISTORY OF THE JAPANESE AMERICAN DETENTION CAMPS (1984)). On January 20, 1944, the Department of War announced that it would draft Japanese 42. Americans out of the internment camps into segregated combat units. See ERIC L MULLER, FREE TO DIE FOR THEIR COUNTRY: THE STORY OF THE JAPANESE AMERICAN DRAFT RESISTERS IN WORLD WAR II, 942 51 UCLA LAW REVIEW 933 (2004) imprisonment in concentration camps were stigmatized, prosecuted, and sent to federal penitentiaries." Japanese Americans were also expected to be productive and compliant citizens within the camps. They were to demonstrate patriotism under duress and to work to make each camp self-sufficient." Children behind barbed wire were instructed to pledge allegiance to the American flag. 5 For an average of nine hundred days, the intemees-many of them children-were imprisoned. Family structures dissolved. Family savings evaporated. Real and personal property were lost. Lives were shattered. Spirits were broken.' Yet for the internees, no individualized findings of guilt or disloyalty were made. Instead, military necessity under exigent circumstances provided the blanket justification for their internment. Of course, in Hawaii, where Pearl Harbor was bombed, and where far more Japanese Americans 47 resided both in relative and absolute numbers, there was no internment. at 64 (2001). They were drafted into the 442d Regimental Combat Team, which had merged with the 100th Battalion (originally from Hawaii). This unit, which included volunteers and draftees, "became the most decorated unit of its size and length of service in U.S. military history." MAKI ET AL, supranote 3, at 43. The decorations stemmed from extraordinary heroism producing extraordinary casualties. 43. See MULLER, supranote 42. 44. Consider, for example, this oath that Poston, Arizona internees were required to sign: I swear loyalty to the United States and enlist in the War Relocation Work Corps for the duration of the war and 14 days thereafter in order to contribute to the needs of the nation and in order to earn a livelihood for myself and my dependents. I will accept whatever pay, unspecified at the present time, the War Relocation Authority determines, and I will observe all rules and regulations. In doing this I understand that I shall not be entitled to any cash or allowances beyond the wages due me at the time of discharge from the work corps; that I may be transferred from one relocation center to another by the War Relocation Authority; that medical care will be provided, but that I cannot make a claim against the United States for any injury or disease acquired by me while in the Work Corps; that I shall be subject to special assessments for educational, medical and other community service as may be provided for in the support of any dependents who reside in a relocation center;, that I shall be financially responsible for the full value of any government property that I use while in the work corps; and that the infraction of any regulations of the War Relocation Authority will render me liable to trial and suitable punishment. So help me God. RICHARD S. NISHIMOTO, INSIDE AN AMERICAN CONCENTRATION CAMP. JAPANESE AMERICAN RESISTANCE AT FSTON, ARIZONA 34-35 (Lane Ryo Hirabayashi ed., 1995). 45. See GOODWIN, supra note 15, at 429 ("'To be frank with you,' sighed Mrs. Jones, an elementary-school teacher appointed by the WRA [War Relocation Authority], 'it embarrasses me to teach them the flag salute. Is our nation indivisible? Does it stand for justice for all? Those questions come up to my mind constantly."'). 46. See, e.g., RAcE, RIGHTS AND REPARATION, supra note 1,at 193-230. 47. Martial law, however, was declared. See infra note 292 (discussing mention of Hawaii in the brief for the appellant). Robinson points out that Roosevelt was strongly in favor of mass evacuation of Japanese Americans in Hawaii to, for example, the U.S. mainland concentration camps. However, such a move would have been simply impractical, and it was not supported by General Emmons, who was in charge of Hawaii at the time. Moreover, there was no mass hysteria for internment within Hawaii. See ROBINSON, supra note 16, at 156-57. Practical realities thus trumped any claimed military necessity. See also DAVID M. KENNEDY, FREEIX)M FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND WAR, Internment, Redress, and Denial B. Denial The internment was not much challenged in courts of law. Recall that the first-generation Japanese American leadership, who generally kept a low public profile, was arrested immediately after Pearl Harbor. Also, the secondgeneration Japanese American Citizens League (JACL), the most influential community organization, strongly urged cooperation as evidence of loyalty.48 Moreover, the Japanese had little access to legal counsel, especially after being placed in the camps.49 Thus, only four individuals' cases ended up reaching the Supreme Court." In these cases-Hirabayashi," Yasui,52 Korematsu," and Endo 54-the Judiciary would have its say about the propriety of internment. The President and Congress had already spoken, through Executive Order 9066, Public Law 503, and the millions of dollars authorized to build, supply, and maintain the camps. So, what exactly did the Supreme Court do? 1. Curfew: Hirabayashiand Yasui The Supreme Court decided the first case, Hirabayashi,in 1943. Gordon Hirabayashi, a pacifist, engaged in civil disobedience against the internment in order to create a test case.55 After refusing to comply with an exclusion order,56 Hirabayashi turned himself in to the FBI on May 16, 1942. He brought his personal diary, which revealed that he had also violated the curfew order during the weeks past. 7 His trial began October 20, 1942. Hirabayashi admitted to violating both orders, and the jury quickly found him guilty on two counts: violating the curfew order and violating the evacuation order. He was originally given consecutive 1929-1945, at 748 (C. Vann Woodward ed., 1999) (suggesting that "the very size of the Japanese community in Hawaii" and their importance to the economy made "wholesale evacuation" impossible). See, e.g., MAKI Etr AL, supra note 3, at 33-34 (describing national JACL policy to urge full 48. cooperation with the government to demonstrate loyalty). 49. For a discussion about the lawyers involved in the cases that made it to the Supreme Court, see PETER IRONS,JustiCE AT WAR (1983). 50. A few more cases had been filed in state or federal courts; however, they did not reach the Supreme Court. See, e.g., Ex parte Kanai, 46 F. Supp. 286 (ED. Wis. 1942); Ex parte Ventura, 44 F. Supp. 520 (W.D. Wash. 1942). 51. Hirabayashi v. United States, 320 U.S. 81 (1943). 52. Yasui v. United States, 320 U.S. 115 (1943). 53. Korematsu v. United States, 323 U.S. 214 (1944). 54. Exparte Endo, 323 U.S. 203 (1944). 55. Hirabayashi,320 U.S. at 83-85. For a portrait of Hirabayashi, see IRONS, supra note 49, at 89-92. 56. See Civilian Exclusion Order No. 57, 7 Fed. Reg. 3725 (May 19, 1942). 57. Hirabayashi's diary showed that he obeyed the curfew until May 4, 1492, but subsequently disobeyed it until he turned himself in on May 16. IRONS, supra note 49, at 90-92. 944 51 UCLA LAW REVIEW 933 (2004) sentences that ran for less than ninety days. Since a ninety-day sentence would allow him to serve time outside doing menial labor instead of inside a jail cell, Hirabayashi requested a longer sentence. The judge obliged and granted him a ninety-day sentence for each offense, to run concurrently instead of consecutively. 8 This seemingly trivial difference would become critical later. The Ninth Circuit Court of Appeals heard the appeal en banc in this case, as well as in Yasui and Korematsu, on February 19, 1943. Instead of deciding the cases, the court certified59 the relevant legal questions of each case to the U.S. Supreme Court.' However, the High Court took the unusual step of requesting that the entire cases be transmitted to it as if they had been brought on direct appeal.6 The Supreme Court heard arguments in Hirabayashiand Yasui on May 10 and 11, 1943. By this time, internment was a fait accompli. Yet, in its published opinion, the Court found a way to ignore the elephant caged in the courtroom. It did so by adopting what I call a segmentation technique that allowed the Court to avoid discussing the detention of Japanese Americans.62 This formalist technique involved dividing the entire internment process into three separate, divisible steps of (i) curfew, (ii) exclusion, and (iii) relocation. 58. See id.at 159. 59. According to Irons, this was done at the suggestion of the Attorney General Francis Biddle, without knowledge of the defendants or of the Supreme Court. See id. at 182. 60. The certification was not without dissent. Judge William Denman suggested that the entire case turned on critical psychological facts regarding loyalty and suggested that the Ninth Circuit Court of Appeals would be better suited to finding these facts than the Supreme Court. Of course, no appellate court iswell suited to find facts. Denman's motivation to dissent is difficult to understand. On the one hand, he showed sympathy to the plight of Japanese Americans, by referring to "the discriminating cruelty with which these Mongoloid people have been treated." Brief for Appellant at 40, Hirabayashi (No. 870). As another example, he made repeated comparisons to Germany's treatment of the Jews. See id.at 41, 43. On the other hand, he wrote that "this court would be compelled to find that General DeWitt has a rational ground to expect [a Japanese attack]." Id. at 46. For additional comments about Denman and his dissent, see IRONS, supra note 49, at 175-76, 183-85. 61. The statute that governed certification during the wartime cases was 28 U.S.C. § 346, currently codified as 28 U.S.C. § 1254(2). Whether the Supreme Court brings up the entire case when legal questions have been properly certified isa matter of discretion. See, e.g., Cincinnati, H. & D.R Co. v McKeen, 149 U.S. 259, 261 (1893). One supposes that the factors relevant to granting certiorari might be relevant. See, e.g., Sup. Cr. R. 10(c) ("[A] United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court .. ") (codified as Rule 38(5)(c) during the wartime cases). 62. 1 do not want to claim greater originality than warranted. Peter Irons in his seminal work carefully described the deliberations of these cases and their final reasoning. In his discussion, he pointed out various aspects I highlight. See, e.g., IRONS, supra note 49, at 228 (describing concurrent sentencing in Hirabayashi);id.at 231 (describing the Justices as "straining to evade the evacuation issue" in Hirabayashi);id. at 320-21 (describing the distinguishing of evacuation from relocation); id. at 34243 (describing Endo's nonconstitutional grounds of decision). Internment, Redress, and Denial 945 Recall that Hirabayashi had been a conscientious objector who tried to challenge the entire internment process. But his convictions in the district court were for violating curfew and an exclusion order. According to historian Peter Irons, Chief Justice Harlan Stone63 was keen on avoiding the exclusion issue, thinking that it could open up review of the entire internment, including the continued incarceration of tens of thousands of people.' Therefore, through reasoning argued by neither party, the Chief Justice took advantage of Hirabayashi's concurrent sentences. He wrote: Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained.6 s Through this sentencing fortuity, the Court sua sponte found an elegant way to segment off the narrow issue of curfew as the sole question presented. 6 As iswell known, the Court's substantive review of the curfew conviction was paradoxical.67 On the one hand, as a matter of theory, the Court waxed eloquent against racism, prejudice, and racial discrimination. Indeed in Hirabayashi, the Court poured the foundation of what we now call strict scrutiny for governmental racial classifications. The Court wrote, "Distinctions between citizens solely because of their ancestry are by their very nature odious 63. President Coolidge appointed Stone, who was then Attorney General, to the Court. Before government service, he was Dean of the Columbia Law School and a Wall Street lawyer. See ERIC K. YAMAMOTO, MARGARET CHON, CAROL L.IzuMI, JERRY KANG & FRANK H. Wu, RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT: TEACHER'S MANUAL 40-41 (2001) [hereinafter TEACHER'S MANUAL]. Three separate concurrences were written in Hirabayashi,one each by Justices Douglas, Murphy, and Rutledge. IRONS, supra note 49, at 234 ("[Ihf Hirabayashi 'had been in [a] concentration camp,' a much 64. 'graver question' would confront the court." (quoting Justice Douglas's notes)). According to Irons, the conference notes reveal that Justice Black desired the outcome to be determined "on narrowest possible points." Id. at 231. The Chief Justice heartily agreed. Id. Hirabayashi v. United States, 320 U.S. 81, 85 (1943). 65. 66. The government made no mention of this argument in its brief. To avoid the larger discussion of the internment, the government argued that Hirabayashi lacked standing to question the constitutionality of any restraint placed on other persons because Hirabayashi himself, after making bail, was allowed to proceed inland to accept employment found by religious friends. Brief for the United States at 36, 72-73, Hirabayashi (No. 870). According to Irons, after serving two months in jail, Hirabayashi was released on bail and awaited the Supreme Court's opinion in Spokane, Washington. He finished serving his sentence in a road camp in Tucson, Arizona. See IRONS, supra note 49, at 250-51. The following analysis describes how the Court addressed the equal protection issue. In its 67. opinion, the Court also addressed whether the federal government had the affirmative power to issue such orders and, even if it did, whether Congress violated the nondelegation doctrine by granting such powers to the military too vaguely. The Court found no merit in Hirabayshi's delegation arguments. 946 51 UCLA LAw REVIEW 933 (2004) to a free people whose institutions are founded upon the doctrine of equality. 68 On the other hand, as a matter of practice, the Court was extremely deferential to claims of military necessity. As Chief Justice Stone explained, "reasonably prudent men" had "ample ground" and a "substantial basis" to believe that the Japanese in America "might reasonably be expected to aid a threatened enemy invasion."" Such reasoning conforms to what we now call racial profiling." The Court thought it was rational to assume that the Japanese posed greater security threats than Americans of other ethnicities. In the Court's view, there was plenty good reason to focus on the Japanese: "The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan."7 Indeed, for the Court, it would have been silly to blind itself to this racialized common sense. It wrote: "We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry."72 Such arguments should sound familiar post-September 11. 68. Hirabayashi,320 U.S. at 100. Five years earlier, Justice Stone authored footnote 4 of United States v. Carolene Products Co., commonly noted as a precursor to the "strict scrutiny" doctrine announced in Korematsu. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (suggesting perhaps stricter review of statutes evincing "prejudice against discrete and insular minorities"). At this time, it was not clear that the Fifth Amendment's Due Process Clause featured an equality component identical to that of the Fourteenth Amendment's Equal Protection Clause. Arguably, that dispute was not settled until Bolling v. Sharpe, 347 U.S. 497,498-99 (1954). See Michael J. Klarman, Race and the Court in the ProgressiveEra, 51 VAND. L. REV. 881,883 n.13 (1998). 69. Hirabayashi,320 U.S. at 94-95. 70. Definitions of racial profiling abound. See, e.g., R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L.REV. 1075, 1081 (2001) ("A racial profile associates members of particular racial groups with particular crimes, based on a reasonable and genuine belief in actual statistical differences in crime rates or patterns of criminal involvement among groups."); Samuel R. Gross & Debra Livingston, Essay: Racial Profiling Under Attack, 102 COLUM. L. REV. 1413,1415 (2002) ('"[Rjacial profiling' occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating."); Deborah A. Ramierz et al., Defining Racial Profilingin a Post-September I1 World, 40 AMER. CRIM. L. REv. 1195, 1205 (2003) ("[R]acial profiling is the inappropriate use of race, ethnicity, or national origin, rather than behavior or individualized suspicion, to focus on an individual for additional investigation."). For interesting analyses of racial profiling, see Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH. L.REV. 946, 973-74, 1030-32 (2002) and David A. Harris, When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies, 6 MICH. J.RACE & L. 237, 237-38 (2001). 71. Hirabayashi,320 U.S. at 101. 72. Id. Internment, Redress, and Denial 947 In legitimizing this foundation for the ethnic-specific curfew, the Court noted that Japanese Americans might be disloyal because American society discriminated against them: There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. 3 Indeed, in a footnote, the Court provided an exhaustive inventory of the various laws that treated Japanese Americans as second-class aliens: federal laws that prevented their immigration and naturalization; 74 state laws that restricted property ownership 75 and intermarriage with Whites; 76 and economic discrimination that limited professional and employment opportunities.7 No doubt, this was prompted by the government's brief, which specifically suggested that "as a result of their [discriminatory] treatment," the Japanese threatened disloyalty."8 Without seeing the catch-22 that Japanese Americans were put in, the Court went on to explain that the Japanese therefore posed a greater national security risk. 9 The Court demonstrated no sense of either the ironic or the 73. 74. THROUGH Id. at 96. See id. at 96 n.4. See generally BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA IMMIGRATION POLICY, 1850-1990 (1993); LucY ELIZABETH SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (1995). 75. See generally Keith Aoki, No Right to Own? The Early Twentieth-Century "Alien Land Laws" as a Prelude to Internment, 40 B.C. L. REV. 37 (1998). 76. See RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE & ROMANCE (2001); Leti Volpp, American Mestizo: Filifpinos and Antimiscegenation Laws in California, 33 U.C. DAVIS L. REV. 795 (2000). 77. Hirabayashi,320 U.S. at 96 n.4. 78. The government's brief explained: The reaction of the Japanese to their lack of assimilation and to their treatment is a question which of course does not admit of any precise answer. It is entirely possible that an unknown number of the Japanese may lack to some extent a feeling of loyalty toward the United States as a result of their treatment, and may feel a consequent tie to Japan, a heightened sense of racial solidarity, and a compensatory feeling of racial pride or pride in Japan's achievements. Brief for the United States at 21, Hirabayashi (No. 870) (citations omitted); see also Brief of the States of California, Oregon and Washington as Amici Curiae at 11, Hirabayashi(No. 870) ("The Japanese of the Pacific Coast area on the whole have remained a group apart and inscrutable to their neighbors. As they represent an unassimilated, homogenous element which in varying degrees isclosely related through ties of race, language, religion, custom and ideology to the Japanese Empire.") (citations omitted). 79. Specifically, the Court wrote: The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions. Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this 948 51 UCLA LAW REVIEW 933 (2004) absurd. It also took no special responsibility for the fact that, in coordination with state judiciaries, it itself had sanctioned the very curtailment of fundamental rights in the past, which justified further continued oppression. And it was not as if the Court were clueless. The JACL pointed out in its amicus brief that accepting such reasoning would put this country on "a treadmill of intolerance from which there is no escape."' In making its case, the JACL pulled no punches: "By [this line of reasoning], the Nazi treatment of the Jews is vindicated, for the Jews of Germany had suffered civil and social disabilities and therefore, by the sadistic turn of logic, should have been ripe for treason to the Reich precisely as Herr Hitler declared."'" Yasui's brief similarly observed the dangerous bootstrapping nature of such arguments: "[In days to come the Government may argue that the Japanese-Americans have not been assimilated into American life because during World War II they were locked up in concentration camps."82 In his arguments, Hirabayashi suggested a different axis of division, not along immutable race or ethnicity but along political citizenship. In other words, curfew should distinguish between (enemy) aliens and U.S. citizens. Accordingly, if citizens of Japanese descent should have to suffer curfew in the name of national security, so should all citizens. The Court declined this invitation: In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with responsibility of our national defense have reasonable ground for believing that the threat isreal.83 In the end, through segmentation, this case was framed as solely about curfew, about staying home between the hours of eight o'clock in the evening and six o'clock in the morning. And curfew in a time of war-even if ethnically targeted-did not seem too gross a burden when it was so commonsensical to target the Japanese. After all, from mainstream society's perspective, they targeted us. By hearing Hirabayashi,the Supreme Court asserted its continuing powers of judicial review, even in wartime, over the other branches of government. But group to Japan and Japanese institutions. These are only some of the many considerations which those charged with the responsibility for the national defense could take into account in determining the nature and extent of the danger of espionage and sabotage, in the event of invasion or air raid attack. Hirabayasfhi, 320 U.S. at 98-99. 80. Brief ofJapanese American Citizen's League as Amicus Curiae at 64, Hirabayashi (No. 870). 81. Id. at64-65. 82. Appellant's Brief at 34, Yasui v. United States, 320 U.S. 115 (1994) (No. 871). 83. Hirabayashi, 320 U.S. at 95. Internment, Redress, and Denial 949 through segmentation, which we will soon see more of, the Court carved off an easier issue than the case or controversy in toto presented. By professing an idealized antiracist rhetoric, the Court also bolstered its reputation for fairness and equality, and denied any responsibility for a distasteful but realpolitik compromise (for example, injustice toward some in exchange for safety for most). At the same time, by deferring wholesale to the government's claims based on racial (but according to the Court, not racist) common sense, it avoided interfering with the larger internment process. Yasui, the companion case to Hrabayashi,presented the same curfew issue." Although the rationale of the district court that convicted Minoru Yasui was bizarre, 85 that reasoning was neither defended by the government86 nor relied upon by the Supreme Court. In Yasui, issued the same day as Hirabayashi, the Court simply relied on the Hirabayashiopinion to affirm the curfew conviction." 2. Exclusion: Korematsu One year later, in 1944, the Court confronted the case of Fred Korematsu. Korematsu was arrested on May 30, 1942, trying to pass as a Spanish-Hawaiian, under the alias "Clyde Sarah."88 Tried before a judge, he was found guilty of violating an exclusion order. The judge determined that the appropriate punishment would be five years' probation, but oddly, he decided against actually imposing the sentence.89 The case was appealed, and the Ninth Circuit certified 84. See Yasui, 320 U.S. at 116-17. 85. Citing Ex Pante Mi~igan, 71 U.S. 2 (1866), the district court held that the curfew order was unconstitutional as applied to citizens. See United States v. Yasui, 48 F. Supp. 40, 45 (D.Or. 1942). But the court also found that Minoru Yasui had somehow lost his citizenship because he had worked for the Japanese Consulate after graduation from law school. See id. at 55. Yasui could not find employment elsewhere despite his Juris Doctor. 86. See Brief for the United States at 9, Yasui, 320 U.S. 115 (No. 871) ("We do not undertake to support the conviction on that ground."). 87. See Yasui, 320 U.S. at 117. 88. Keen on staying in Northern Califomia to be with his Italian American sweetheart, Fred Korematsu had plastic surgery on his nose and eyes to try to alter his physical features. This did not, however, prevent others from mapping his physical features to the ethnic category, Japanese. On this point, Judge Denman of the Ninth Circuit Court of Appeals noted: After that time [Korematsu] had made an unsuccessful attempt to have his features altered by plastic surgery, hoping thereby to escape the discrimination against his minority group of citizens. This attempt is as pathetic as that of another of our minority groups--of those of one-sixteenth negro blood hoping to conceal the fact that they have not "passed over" into general Caucasian social intercourse. Korematsu v. United States, 140 F.2d 289, 293 (9th Cit. 1943) (Denman, J., concurring in the judgment) (concurring only in the judgment but dissenting from the grounds of the majority opinion in Korerartsu after remand from the Supreme Court). 89. See IRONS, supra note 49, at 153. The district court's order stated that Korematsu should "be placed on probation for the period of five (5) years .... Further ordered that the bond heretofore given for 950 51 UCLA LAW REVIEW 933 (2004) it to the Supreme Court with Hirabayashiand Yasui. As explained, the Supreme Court commanded that all three cases be brought up in their entirety to be decided by the Court itself.9" Because of the odd sentencing posture, one procedural uncertainty was whether Korematsu had an appealable final judgment.' Three weeks before handing down the curfew cases, the Court determined that there was indeed a final order, and thus an appealable judgment, in Korematsu. The case was then remanded to the Ninth Circuit to address the substantive issues.92 The Court could have addressed the merits of the case directly as it did in the curfew cases. It was not as if the curfew cases were procedurally or jurisdictionally any different from Korematsu's case: In none of the cases had the Ninth Circuit issued any opinion. But Korematsu raised harder substantive questions, and delay would work in the Court's favor. If heard promptly, the case could have been decided contemporaneously with the curfew cases in June 1943. But the Court's Korematsu opinion was not published until December 1944, oneand-a-half years later.93 This procedural history identifies an obvious way through which the Court delayed addressing the central issues. More subtle techniques, however, were also employed. In Korematsu, the Court, per Justice Hugo Black,94 began with the now-familiar segmentation technique. The HirabayashiCourt avoided addressing the exclusion order conviction because it believed that doing so would present a challenge to the entire internment structure. Accordingly, it blinded itself to the social reality of internment and focused on the curfew conviction alone. In Korematsu, there was no fortuity of concurrent identical sentences that would allow the Court to dodge the internment issue. Still, the the appearance of the defendant be exonerated. Ordered pronouncing of judgment be suspended." See Korematsu v. United States, 319 U.S. 432, 432-33 (1943) (quoting the district court order). 90. See supratext accompanying notes 59-61. 91. When Korematsu filed his notice of appeal, the United States filed a motion arguing that there was no final judgment since the sentence was probationary. Korematsu's attorney specifically asked the trial court judge to impose a few days of jail sentence in order to avoid any uncertainties about appealability, but the trial court refused. See IRONS, supra note 49, at 162 (describing government attorney Zirpoli as "eager to keep the case from the appellate courts"). 92. See Korematsu,319 U.S. at 436. 93. In fact, the procedural history is even more tortured. On remand, the court of appeals affirmed Korematsu's evacuation conviction on the authority of the Supreme Court's opinion in Hirahayashi. See Korematsu, 140 F.2d at 290. It did so without any additional oral argunent. See IRONS, supra note 49, at 258. Afterward, the Korematsu case was ready to be heard at the Supreme Court in the Spring of 1944. However, because a case that raised similar issues, Endo, was in the pipeline, the Court delayed oral argument in Korematsu until the following term. Both cases were heard on October 11, 1944. 94. Justice Hugo Black, Roosevelt's first Supreme Court appointee, was a Democratic Senator from Alabama. He was also a former member of the Ku Klux Klan. Later, he would develop a reputation for being a staunch defender of many civil liberties, advocating a literalist reading of constitutional text. See TEAcHE'S MANUAL, supra note 63, at 38-39. Justice Frankfurter wrote a concurrence in Koremaru. Justices Roberts, Murphy, and Jackson each dissented in separate opinions. Internment, Redress, and Denial 951 Court found a way to carve out the exclusion issue from the continuing incarceration of Japanese Americans. It did so through remarkable formalism. As detailed in Justice Roberts'9" dissent, the exclusion order was part and parcel of Korematsu's relocation into an internment camp.96 As of March 27, 1942, Proclamation 4 (the "freeze order") made it illegal for Fred Korematsu to move from the West Coast voluntarily.97 Then the exclusion orders came down, and Civil Exclusion Order No. 34 required Korematsu to report to an evacuation site.98 Remaining in his home area after the evacuation deadline (unless he was housed in an assembly center) was a federal crime. From these evacuation sites, the Japanese were forcibly escorted by Army soldiers into assembly centers, and if military rifles were somehow ambiguous, Civilian Restrictive Order 1,issued on May 19, made clear that no one could leave the assembly centers without authorization.99 Public Proclamation No. 8, issued on June 27, clarified that evacuees would be forcibly moved from the assembly centers to relocation centers managed by the War Relocation Authority. 00 On these facts, Justice Roberts vigorously resisted the characterization that this was "a case of temporary exclusion of a citizen from an area for his own safety or that of the community, [or] a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows."10'1 Instead, it was a "case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely based on his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States."10 2 Still, the majority, per Justice Black, found a way to deny the obvious. First, it noted in passing that the only issue framed at trial was the violation of the exclusion order. 1°3 Second, the Court pointed out fantastically that it did not really know what would have happened to Korematsu had he obeyed the exclusion order, since some Japanese "were released upon condition that they remain Justice Owen Roberts, appointed by Herbert Hoover, was a prominent Philadelphia lawyer. 95. In 1937, he was the "switch in time that saved nine" that obviated Roosevelt's "court-packing" plan. He was also the Justice who chaired the official investigation into the Pearl Harbor attack in January 1942. See id. at40. See Korematsu v. United States, 323 U.S. 214, 225 (1944) (Roberts, J., dissenting). 96. See Public Proclamation No. 4, 7 Fed. Reg. 2601 (Apr. 4,1942). 97. See Civilian Exclusion Order No. 34, 7 Fed. Reg. 3967 (May 28, 1942). 98. See Civilian Restrictive Order 1,8 Fed. Reg. 982 (Jan. 21, 1943). 99. See Public Proclamation No. 8, 7 Fed. Reg. 8346 (Oct. 16,1942). 100. Korematsu, 323 U.S. at 226. 101. Id. 102. Id. at 221. 103. 952 51 UCLA LAW REVIEW 933 (2004) outside the prohibited zone until the military orders were modified or lifted."' 4 This is notwithstanding the government's concession that, "had [Korematsu] obeyed all of the provisions of the order and the accompanying Instructions, [he] would have found himself for a period of time, the length of which was not then ascertainable, in a place of detention."'' 5 Third, the Court emphasized that the three separate requirements of evacuation, reporting to an assembly center, and staying in a relocation center imposed three separate sets of duties. If they had been codified in a federal criminal statute, they would be considered three separate offenses.' 6 With the issues framed this way, addressing the entire internment would be nothing short of judicial activism: To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or certain to be applied to him .... ,,107 Aggressively applying the segmentation technique and appealing to the virtues of judicial self-restraint, the Court treated the case as if it were simply a requirement that Japanese Americans temporarily vacate their homes in narrowly designated military areas, for the sake of their own personal safety and national security.'0 8 The Court refused to address the legality of the entire West Coast Japanese American population's subsequent incarceration in assembly centers and then relocation centers. One could predict the rationalization to come. Having narrowed the issue again, the Court approached the substance by replicating the Hirabayashistrategy. In prose that any modem civil rights activist would embrace and first-year constitutional law students would recognize, the Court pronounced: [A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most 104. But as the ACLU explained in its amicus brief, there were no regulations implemented to allow "leaves" until September 26, 1942. Korematsu was convicted for violating military orders in May, many months earlier. Brief of American Civil Liberties Union as Amicus Curiae in Support of Petition at 11, Korematsu (No. 22), reprinted in 42 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 89 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter LANDMARK BRIEFS]. 105. Brief for the United States at 28-29, Korematsu (No. 22), reprinted in LANDMARK BRIEFS, supra note 104, at 203,230-31. 106. Korematsu, 323 U.S. at 222. 107. Id. 108. See Arval A. Morris, Justice, War, and the Japanese-AmericanEvacuation and Internment, 59 WASH. L.REV. 843,855 (1984) (describing the Court as "strain[ing] to separate the inseparable"). Internment, Redress, and Denial 953 rigid scrutiny. Pressing public necessity may sometimes justify the exisnever can.109 tence of such restrictions; racial antagonism But in practice, rigid scrutiny amounted to limp deference to racial-profiling justifications supported by the backdrop of national security fears. Quoting generous portions of Hirabayashi, the Court did not consider the military's fears to be "unfounded."' 0 Indeed, according to the Court, the military's fear of disloyal Japanese Americans was vindicated by the fact that, after internment, "[a]pproximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan."... Anyone familiar with the tortured history of the camp loyalty oaths and the repatriation requests knows how little these facts, 2 understood in context, supported the military necessity rationale." The Court directly rejected any notion that racism prompted the evacuation. Instead, the Korematsu, 323 U.S. at 216. Perhaps not all civil rights activists would embrace this articula109. tion. The idea of "pressing public necessity" is deeply ambiguous, without specification. Moreover, the dichotomy drawn between "public necessity" and "racial antagonism" can be false; our perception of what's pressing and in the public good is filtered through our schemas, including racial ones. Id. at 218. 110. Id. at 219. 111. See RACE, RIGHTS AND REPARATION, supra note 1, at 215-30. After deciding to draft 112. Japanese into military service from the internment camps, male Nisei (second generation and thus citizens by birthright) were asked to answer a Selective Service Questionnaire. Those not eligible for the draft were eventually asked a similar Leave Clearance Questionnaire. Questions 27 and 28 of the Selective Service Questionnaire were highly controversial (similar versions were asked on the leave questionnaire). The first question asked "Are you willing to serve in the armed forces of the United States on combat duty, whenever ordered?' Id. at 216. Many Nisei understandably did not want to leave their elderly parents behind barbed wire to fight for "freedom" elsewhere. To infer from a "no" response to this question the sort of disloyalty that justified internment is absurd. See generally id. at 215-16. See also id. at 222-27 (discussing the draft resistance). The second question asked: "Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any or all attack by foreign or domestic forces, and forswear any form of allegiance or obedience to the Japanese Emperor, to any other foreign government, power or organization' Id. at 216. Some thought this was a trick question, that by answering "no" one was admitting that one had some allegiance to the Japanese Empire in the first place. Also, for the Issei (first generation), the question forced them to become stateless. Recall that they could not naturalize, and to forswear their political connections to Japan would have left them without a nation state affiliation. See id. As for the repatriation matter, it is true that a total of 5700 renunciations were filed, nearly all of them from Tule Lake, the camp where the "disloyals" and "troublemakers" were segregated. In July 1944, Congress was happy to enact new legislation to permit the renunciation of U.S. citizenship; no such mechanism existed before. But those renunciations were made under dispiriting, coercive, and sometimes violent circumstances. See, e.g., Acheson v. Murakami, 176 F.2d 953, 959 (9th Cit. 1949) (affirming trial court findings that renunciations from Tule Lake were not made voluntarily). In Murakami, Judge Denman-the same judge that dissented from certification of Korematsu to the High Court-wrote "[tihe German mob's cry of'der Jude' and 'the Jap is a Jap' to be 'wiped off the map' have a not remote relationship in the minds of scores of thousands of Nisei, whose constant loyalty has at last been recognized." Id. at 958. See generally RACE, RIGHTS AND REPARATION, supra note 1, at 227-32. 954 51 UCLA LAW REVIEW 933 (2004) Court reasoned that it was caused by "military imperative.". To the Court, drawing general inferences of potential disloyalty based solely on ethnicity was not an act of racial prejudice-it was rational common sense. The Supreme Court made shrewd use of the previous year's Hirabayashi opinion. In that case, the Court held that a curfew order was within the legitimate wartime powers of the federal government" 4 and that targeting the Japanese did not evince racial discrimination."5 In this case, the exact same would go for the next step of evacuation. As the Court explained, in language suggesting it could not have done otherwise: "In the light of the principles we announced in the Hirabayashicase, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did."" 6 Of course, invoking Hirabayashi in this way reneged on the promise that the Court made in that very opinion-namely, that it was deciding only the narrow issue of curfew and nothing else." 7 As Justice Robert Jackson"' pointed out in his celebrated Korematsu dissent, the majority took a carefully limited Hirabayashiopinion-which repeatedly emphasized that it was deciding only the curfew issue-as precedent for far greater burdens. Jackson lamented that "[tihe Court is now saying that in Hirabayashiwe did decide the very things we there said we were not deciding..." 9 From this experience, Jackson emphasized how a judicial imprimatur of military action was far more dangerous than the military action itself: The official approval would have "a generative power of its own, and all that it creates will be in its own image.""'2 Just as Hirabayashiacted as a "loaded weapon ' '12 ' ready to be picked up and used by the Korematsu Court one year later, Justice Jackson worried out loud about what the Korematsu weapon might authorize in the years to come."' Jackson's concerns can be understood in terms of the segmentation technique. Segmentation not only allowed the carving off of easier issues for decision 113. Korematsu, 323 U.S. at 219. 114. Hirabayashi v. United States, 320 U.S. 81, 104-05 (1943). 115. See id.at 100-01. 116. Korematsu,323 U.S. at 217-18 (emphasis added). 117. Indeed, in his brief, Korematsu repeatedly emphasized that Hirabayashidid not decide the specific issues pertinent to his case. Petition for Writ of Certiorari at 10-11, Korematsu (No. 22), reprinted in LANDMARK BRIEFS, supra note 104, at 8, 17-18. 118. Justice Robert Jackson was Attorney General when Franklin Roosevelt appointed him to the Court. He would serve as the United States prosecutor at the Nuremberg trial of war crimes after World War II. See TEAcHER'S MANUAL, supranote 63, at 39-40. 119. Korematsu, 323 U.S. at 247. 120. Id. at 246. 121. Id. 122. Id. Internment, Redress, and Denial 955 but also allowed a temporal staggering in lawmaking (or law interpreting) that fostered the appearance of a reserved, reasoned, and precedent-guided incrementalism. Through segmentation, the Court was able to create precedent on the easier issue (curfew) that would, in the end, draw no dissent.' Having constructed this precedent, it then could decide the next' and harder issue (only slightly harder because evacuation had been segmented from indefinite detention) guided by extant precedent-an external, preexisting thing that ran on all fours with the case at hand. Framed this way, evacuation did not raise a novel legal question. Instead, it presented a small extension from a fact pattern that had already been adjudicated as constitutional.'25 The difference was a matter of quantitative degree of burden-evacuation concededly more burdensome than curfew-not a qualitative difference of legal moment. And, as the Court explained, if curfew is constitutional (as the Court said it was just the year before), only a small extension of constitutional interpretation would be required to authorize evacuation as well. Chief Justice Stone specifically concluded internal deliberations of Korematsu by urging his brethren: "If you can do it for curfew you can do it for exclusion."'26 This segmentation technique, regardless of whether the full strategy was planned in advance, allowed the Court to obscure its own agency and thereby minimize responsibility for its choice. It ceded responsibility to a Supreme Court of the past (admittedly only one year past), which had established guidance squarely on point (even though the earlier Court had disclaimed that it was doing so). Morally disturbing, but technically exquisite. 3. An Aside on Racism My primary goal regarding the 1940s cases is to spell out the procedurelike tools the Supreme Court exploited to effect its objectives. Still, the substantive justification of racial profiling, coupled with strident denials of racism, invites brief commentary on the meaning and modes of racism. How should we evaluate, for instance, the Court's claim in Korematsu that "[tio cast Justice Murphy's concurrence in Hirabayashiwas originally drafted as a dissent. However, upon 123. the strong urging of Justice Frankfurter, that opinion was slightly modified and converted into a concurrence. See IRONS, supra note 49, at 243-47. Korematsu was "next" and not simultaneous with Hirabayashibecause the Court remanded the 124. case to the Ninth Circuit after deciding that there was an appealable final order. See Korematsu v. United States, 319 U.S. 432,436 (1943). This isprecisely how the Ninth Circuit Court of Appeals, on remand, viewed the case. On the 125. authority of the Supreme Court's Hirabayashi opinion, the Ninth Circuit summarily affirmed Korermatsu's conviction for violating the evacuation order. See Korematsu v. United States, 140 F.2d 289, 290 (9th Cit. 1943). See IRONS, supra note 49, at 322. 126. 956 51 UCLA LAW REVIEW 933 (2004) this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue"?'27 If racism is defined as crass naked hostility against a racial or ethnic group without any objectively plausible or subjectively entertained rationalization for that antipathy (besides simple group hatred), then the Court's claim is correct. Under this definition, only the most brazen White supremacists count as racist. But why should we suppose that racism functions in this ridiculously cramped way? To pursue this question, we need a working theory of racial mechanicshow race operates in our minds. In previous work, I have laid out a tentative model of racial mechanics, drawing heavily on social cognition literature: In any social interaction, we map each other into racial categories that trigger associated racial meanings. These meanings influence the terms, nature, and evolution of the interaction. As shorthand, I use the term "racial schema" to refer to all three elements: (i) racialcategories, through which the basic concept of race is understood; (ii) rules of racialmapping, which are used to classify individuals into categories; (iii) racialmeanings, which are cognitive beliefs about and affective reactions to the categories.128 In other words, in any interaction, we apply rules of racial mapping to place a human being or a group of human beings into a racial category. Immediately, a cache of racial meanings associated with that category is triggered both consciously and unconsciously. These meanings include cognitive beliefs (often called "stereotypes") as well as affective feelings (often called "prejudice"). Some meanings are explicitly held and embraced, whereas others reside implicitly in our minds. Interestingly, social cognition research demonstrates that the explicit is dissociated from the implicit.'29 Put another way, even those who genuinely espouse equality norms on self-reported surveys may have substantial implicit biases against racial minorities. Both explicit and implicit racial meanings'30 alter our thinking and behavior in significant ways. If we apply this model to the internment, we see that the rules of racial mapping forced the Japanese in America into a racial category: Oriental. This in 127. Koremaisu, 323 U.S. at 223. 128. Jerry Kang, Cyber-Race, 113 HARV. L REV. 1130,1139-40 (2000). 129. For an excellent review of the astonishing literature, see Nilanjana Dasgupta, Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations (Aug. 18, 2003) (on file with author). Accessible summaries of some of this literature can be found in Gary Blasi, Adocacy Against the Stereotype: Lessons From Cognitive Social Psychology, 49 UCLA L REV. 1241, 1246-66 (2002). 130. See, e.g., Allen R. McConnell & Jill M. Leibold, Relations Among the Implicit Association Test, DiscriminatoryBehavior, and Explicit Measures of Racial Atniudes, 37 J. EXPERIMENTAL SOXC. PSYCHOL 435, 438-41 (2001) (demonstrating the link between implicit bias measured by the Implicit Association Test and interactional behavior). Internment, Redress, and Denial 957 turn triggered multiple racial meanings associated with that category that had accumulated throughout history, starting from the days of the first Chinese immigrants, the Chinese Exclusion Acts, the alien land laws, and the de jure second-class alien status afforded to Asian peoples."' In the war context, the fundamental racial meaning triggered was that of "forever foreign." Orientals were not and could not become part of "us" because they were racially other. As 32 General DeWitt pointed out, no piece of paper could remove this racial taint. As the attorneys general of the western states wrote in their amicus brief in Hirabayashi,"[tihe Japanese of the Pacific Coast area on the whole have remained a group apart and inscrutable to their neighbors. As they represent an unassimilated, homogenous element which in varying degrees is closely related through ties of race, language, religion, custom and ideology to the Japanese Empire.' 33 Two consequences flow from the activation of this racial meaning. First, as foreigners who could not become part of "us," the Japanese held allegiances to "them." Accordingly, as parsed by these prevalent racial schemas, they were in fact "enemy aliens" notwithstanding birthright citizenship or claims of cultural assimilation. This is what makes the following stunning statement by the Korematsu Court comprehensible: "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 ... "1" See Keith Aoki, "Foreign-Ness" & Asian American Identities: Yellowface, World War II Propa131. ganda, and Bifurcated Racial Stereotypes, 4 UCLA ASIAN PAC. AM. LJ. 1,9-44 (1996) (reviewing stereotypes and their historical context). Neil Gotanda has criticized Peter Irons' Justice at War for privileging individual attorneys' decisions over such broader historical forces that provided the context for those decisions. See Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 COLUM. L.REV. 1186,1187-88 (1985) (reviewing IRONS, supra note 49). As DeWitt explained: 132. In the war in which we are now engaged racial affinities are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become "Americanized," the racial strains are undiluted .... PERSONAL JUSTICE, supra note 8, at 66 (quoting the transcript of a meeting in DeWitt's office, Jan. 4, 1942). DeWitt repeated his views before a Congressional Committee: [lit makes no difference whether he isan American citizen, he isstill a Japanese. American citizenship does not necessarily determine loyalty.... You needn't worry about the Italians at all except in certain cases. Also, the same for the Germans except in individual cases. But we must worry about the Japanese all the time until he iswiped off the map. Id.at 65-66 (quoting testimony before House Naval Affairs Subcommittee, Apr. 13, 1943). Brief of the States of California, Oregon, and Washington as Amici Curiae at 11, Hirabayashi 133. v. United States, 320 U.S. 81 (1943) (No. 870). Korematsu v. United States, 323 U.S. 214, 222 (1944). 134. 958 51 UCLA LAW REVIEW 933 (2004) Second, because they were foreigners, the interests of the Japanese in America could implicitly be discounted. All communities, including nation states, draw boundaries around those insiders who deserve full respect and solicitude. As partially dehumanized outsiders, the Japanese did not fall fully within this nation's circle of concern. As outsiders, their pain and suffering were implicitly and affectively discounted on the national balance sheet.' This can be seen in some of Korematsu'sjustificatory rhetoric. For instance, the Court emphasized that exclusion was a burden that a patriotic citizen should be prepared to bear. Giving a civics lesson and inducing patriotic assent, the Court pointed out: [Hlardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden isalways heavier. 6 Of course, a/didn't really mean all. Recall that in Hirabayashi,the Court made clear that it would be silly to make a// citizens (including German and Italian Americans) subject to curfew." 7 My task here is not to state, much less defend, an entire social cognitive theory of race.' Rather, the point is merely to resist the simplistic dichotomy of evil racists versus pure egalitarians, as if each Justice must have been one or the other. With a more complex understanding of racial mechanics, we need not suppose that the Supreme Court Justices were evil racists in order to understand that racial schemas deeply influenced their rationalization of the cases, in ways that substantially harmed Japanese Americans. C. Absolution: Endo So far, we have examined how the Supreme Court artfully deployed procedure-like tools to achieve substantive results that were obviously commonsensical according to the prevailing racial schemas. Much of this the Court implemented through the technique of segmentation. For example, in Korematsu, the Court promised that, "[i]t will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or 135. Paul Brest has called this "selective indifference." Paul Brest, Foreword: In Defense of the Anidisnmmuaio Princple, 90 HAR. L REv. 1,21 (1976). 136. 137. Kbrematsu,323 U.S. at 219. See Hirabayashi,320 U.S. at 95. Also, Public Proclamation No. 5, issued on March 30, 1942, allowed German and Italian aliens to apply for exemptions from any curfew or evacuation order. See Public Proclamation No.5, 7 Fed. Reg. 2713 (Apr. 9, 1942). Public Proclamation No. 13, issued on October 19, 1942, exempted all Italian aliens from military curfew and travel regulations. See Public Proclamation No. 13, 7 Fed. 8656 (Oct. 23, 1942). 138. See, e.g., Jerry Kang, Trojan Horses of Race (work inprogress). Internment, Redress, and Denial 959 relocation order is applied or is certain to be applied to him, and we have its terms before us.""' That time would come, not through Korenatsu,but through the habeas corpus petition of Mitsuye Endo-the final internment case heard by the Court. Although the three other cases arose from challenges to federal convictions, Endo arose from a petition for the great writ.'O The district court denied the writ, and the Ninth Circuit Court of Appeals certified relevant legal questions.14 ' As in the other cases, the Supreme Court commanded that the entire record be brought up so that it could decide the whole matter in controversy. The segmentation technique that had worked so successfully in the prior cases seemed unavailable here. Clearly at issue was the indefinite detention of a U.S. citizen who the government conceded was loyal to the United States. Dodging this issue, when it was so cleanly presented through a habeas corpus petition, would have been difficult. Still, given the malleability of doctrine and procedure, one might suppose that there could have been some way out.'42 But there was good reason to think that the time was ripe for decision. After all, the war was going well; Roosevelt had been reelected to his fourth term, and it was time to face the music. And the Court was about to compose a tune that would upset almost no one. In this final opinion, issued on the same day as Korematsu, a Japanese American litigant finally won: Endo is the one success story in the 1940s litigation. Yet it was ultimately an unsatisfying victory. Immediately after noting that Endo should be given her liberty, the Court expressly declined to address any of the constitutional issues that had been argued. Couching itself again in the passive virtues, 4 1 the Court instead decided the case on administrative law and statutory grounds. The "fall guy" was the War Relocation Authority (WRA), which, according to the Court, was never granted the power to detain concededly loyal American citizens such as Endo.' In this way, the Supreme Court 139. Korematsu, 323 U.S. at 222. The Supreme Court accepted certification of this case in the Spring of 1944 from the Ninth 140. Circuit Court of Appeals, but oral argument was delayed in both Korematsu and Endo until October. Exparte Endo,323 U.S. 283, 284 (1944). 141. Indeed, the courts below raised issues of both exhaustion and jurisdiction. Specifically, the dis142. trict court denied the petition for failure to exhaust administrative remedies since Endo allegedly had not filed all the requisite forms necessary to gain "indefinite leave." Id. at 294. Although the government raised this point in the trial court, it did not raise it before the Supreme Court. Relatedly, there was some question about jurisdiction. While her petition was pending, Endo was moved from the Tule Lake concentration camp to Topaz. The Supreme Court clarified that moving Endo did not deprive the district court of jurisdiction as long as the jailer remained within the jurisdiction of the district court. See id. at 304-05. 143. 144. See infra Part I.D. Endo, 323 U.S. at 302-04. 960 51 UCLA LAW REVIEW 933 (2004) shielded the executive and legislative branches from blame. Neither Endo nor, by proxy, the over 100,000 Japanese Americans interned, received public vindication that their constitutional rights had been violated. To decide whether the WRA had been granted the power to run the camps as it did, the Court examined the relevant foundational documents, Executive Order 9066, Executive Order 9012 (creating the WRA), and Public Law 503. Adopting a literalist stance, the Court noted that none of these documents specifically mentioned detention (indefinite or otherwise).'45 Executive Order 9066 only authorized the military to designate military areas and terms of access to those areas.'4 6 Public Law 503 merely created federal criminal penalties to back up Executive Order 9066, and although its legislative history mentioned curfew, it did not mention detention. 147 Executive Order 9012, which created the WRA, only stated blandly that its purpose was "to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security."'48 In reaching the conclusion that neither the President nor Congress had authorized mass detention, the Court invoked the familiar interpretive protocol of reading legislation to avoid constitutionally worrisome meanings. 149 Applying this protocol, the Court created a presumption that the President and Congress were "sensitive to and respectful of the liberties of the citizen."' 5 The Court did allow for the possibility that the power to adopt temporary detention, as part of the relocation program, might be legitimately implied. However, any longer period of detention of a concededly loyal U.S. citizen for an objective other than protection against "espionage and sabotage" was not what either political branch sought or empowered the WRA to do. After all, the fact that "lawmakers intended to place no greater restraint on this event was clearly and unmistakably indicated by the language they used.' 5' To read the executive orders and the federal statute in any other manner would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the Presi145. 146. 147. 148. 149. Id.at 300-01. Id. Id. Id. at 300. See generally William K. Kelley, Avoiding ConstitutonalQuestions as a Three-BranchProblem, 86 CORNELL L. REv. 831, 836-43 (2001) (discussing the history and doctrinal evolution of the "avoidance canon"). 150. Endo, 323 U.S. at 300. 151. Id. Internment, Redress, and Denial 961 dent has said of these loyal citizens: "Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and well-being. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and52equal treatment for the people of this minority as of all other minorities."' The general norm of interpreting ambiguous government pronouncements to avoid a conclusion of unconstitutionality reflects judicial respect for the coordinate branches of government. And stated abstractly, this bias in favor of charitable interpretations seems like good judging, which blunts the otherwise sharp point of the countermajoritarian difficulty.'53 But in Endo, this otherwise reasonable interpretive practice produced an epic whitewash. Notwithstanding the harsh and public reality of biased, negative racial meanings influencing the decisionmaking process of the political branches, the Court explained that it could not possibly assume that this was so. And by publicizing Roosevelt's self-serving characterization of Japanese Americans as "loyal Americans" in its opinion, the Court further shored up the President's reputation. 4 This is notwithstanding Roosevelt's purposeful delay in ending the internment until after his November reelection.'55 Perhaps it is worth mentioning here that seven of the nine Justices were appointed by Roosevelt himself.. 6 It is preposterous to think that the two political branches of our government did not authorize the internment camps, as constructed, maintained, and operated by the WRA. In his dissent, Justice Roberts thought the majority to be "ignorfing] patent facts"'57 and "hid[ing] [its] head in the sand"'58 by suggesting Id. at 303-04 (emphasis added). 152. This is the standard justification for the doctrine, but it has come under substantial attack. 153. See, e.g., Kelley, supra note 149; Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003, 1054-55 (1994) (suggesting protection of minority rights as one reason to reach constitutional issues even if nonconstitutional grounds for decision exist); Frederick Schauer, Ashwander Revisited, 1995 SuP. Cr. REV. 71. For further discussion of Roosevelt's periodic "laudatory" statements about Japanese 154. Americans, notwithstanding their incarceration in relocation centers, see ROBINSON, supra note 16, at 170-73 (analyzing Roosevelt's February 1, 1943 statement proclaiming that "Americanism is a matter of the mind and heart; Americanism is not, and never was, a matter of race or ancestry"). Historian Doris Kearns Goodwin writes, "[Bly deciding to wait until after the election 155. to rescind the exclusion order, [Roosevelt] bears responsibility for extending what was already one of America's darkest hours." GOODWIN, supra note 15, at 515; see also ROBINSON, supra note 16, at 221-27 (making the case that Roosevelt delayed any major decision on releasing the Japanese Americans until after the election). Justices Black, Douglas, Frankfurter, Jackson, Murphy, Reed, and Rutledge were 156. appointed by Roosevelt. 157. Endo, 323 U.S. at 309. 158. Id. 962 51 UCLA LAW REVIEW 933 (2004) that inferior public servants had acted beyond the authority granted by executive order.'59 He pointed out that Congress made annual appropriations to the WRA to maintain the camps after full congressional reports, testimony, and hearings. Such appropriations surely amounted to ratification even if the original Public Law 503 did not. In fact, although nowhere mentioned in the opinion, the government had invited just such an inference from the act of appropriations back in the prior Hirabayashicase." The majority conceded the existence of such appropriations, reports, testimony, and hearings. Still, it was not persuaded: But the appropriation must plainly show a purpose to bestow the precise authority which is claimed. We can hardly deduce such a purpose here where a lump appropriation was made for the overall program of the Authority and no sums were earmarked for the single phase of the total program which is here involved. Congress may support the effort to take care of these evacuees without ratifying every phase of the program.161 "[Shingle phase of the total program" refers to the procedures by which loyal Americans were released (or more accurately not released). One would think that the "exit" procedures amounted to more than a trivial factor of the internment machinery and that appropriations to keep Japanese Americans under locked guard and to release them only through specific, publicly articulated procedures should count as constructive knowledge and ratification of those procedures. As Justice Roberts pointed out in his dissent, requiring this degree of hyper-specificity before inferring ratification added a new element "never before thought essential to congressional ratification."'62 But countenancing ratification would be to hold Congress accountable for massive constitutional violations, and 63 this the Court would not do. 159. Id. at 309-10. 160. As the government argued: It issubmitted that the Act of March 21, 1942 [PL 503], constituted not only clear authorization of the action taken, but also a plain legislative ratification of Executive Order 9066, and of the orders issued thereunder.... Moreover, the Congressional authorization is further confirmed by the $70,000,00 appropriation made by the Act of July 25, 1942, for the War Relocation Authority, in connection with the evacuation program.... Such appropriation acts are a familiar form of expression of Congressional understanding and approval. ...
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