6. When the Court (Almost) Closed the Camps
The little-known companion case to Korematsu could—and should—have been a much bigger deal
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
Every Monday, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying what you’re reading, perhaps you’ll consider gifting a subscription for the holidays?
On the Docket
It was mostly a housekeeping week for the Justices. Monday’s regular Order List came with a series of unremarkable denials of certiorari; and the Court granted three new cases on Tuesday, none of which are especially high-profile. The Court on Monday also added another challenge to President Biden’s student loan relief program to the docket, and it turned away an emergency application from R.J. Reynolds trying to block California’s ban on flavored tobacco.
One other piece of non-case-related news was the Court’s announcement that, starting in January, it will resume its practice of handing down opinions in argued cases from the bench—although, unlike oral arguments, the hand-downs will not be live-streamed. Hand-downs had gone online in March 2020 thanks to COVID, and even after the Court retook the bench for arguments last fall, it continued to hand down opinions only electronically—a move that, among other things, prevented dissenting Justices from choosing to read their dissents from the bench, a move that has been used historically to publicly signal especially impassioned objections to the majority’s decision.
For what (little) it’s worth, I’ll just say that, while I’m very glad that the Court is going to once again hand down opinions from the bench, I’m disappointed that it won’t live-stream the hand-downs (meaning the audio won’t be available until the next Term). For reasons the legendary Supreme Court reporter Tony Mauro and others have articulated, the hand-downs serve an important public purpose, and it seems difficult to me to defend allowing livestreams of unscripted oral arguments (when the Justices are merely asking questions and advocates are also speaking), but not scripted hand-downs (when the Justices are the only ones talking, and are reading formal summaries/statements about their rulings). If hand-downs are important enough to be done publicly, they’re important enough to be live-streamed to those who can’t be physically present in the courtroom.
As for the week ahead, although the Justices cleared the decks last week in anticipation of the holidays, they may have to grapple with an emergency application this week involving the so-called “Title 42” program—immigration restrictions that were putatively based upon public health concerns (hence “Title 42,” a reference to the U.S. Code location of federal public health laws) during the COVID pandemic. The program is set to end on Wednesday after a federal judge struck it down earlier this year, but a number of red states are trying to force the Biden Administration to continue it while they seek to intervene in an appeal of that lower court ruling. On Friday, an ideologically diverse D.C. Circuit panel denied an emergency request from those states, which now means that their only remaining option is SCOTUS. Stay tuned…
The One First Long Read: How the Court Almost Ended Internment
78 years ago yesterday, on Monday, December 18, 1944, the Supreme Court handed down its infamous ruling in Korematsu v. United States—a decision so thoroughly discredited that is part of what Columbia law professor Jamal Greene calls “the anticanon,” alongside such other gems as Dred Scott (endorsing and enshrining slavery) and Plessy v. Ferguson (establishing “separate but equal” and constitutionalizing Jim Crow). Indeed, the majority in the Travel Ban 3.0 case, Trump v. Hawaii, purported to overrule it—although Justice Sotomayor’s dissent accused the majority of repeating many of the Korematsu Court’s mistakes.
As just about every student of law or American history learns, in Korematsu, a 6-3 majority upheld the criminal conviction of Fred Korematsu, a U.S. citizen of Japanese descent, for violating exclusion orders that barred anyone of Japanese ancestry from just about the entire West Coast. Justice Black’s majority opinion notoriously turned a blind eye toward the blatant racism animating the exclusion policy (although a small number of German and Italian nationals in the United States were detained under the Alien Enemy Act of 1798, none of their U.S. citizen descendants were). And the federal government didn’t help matters by deliberately misleading the Court about two central factual questions in the case: whether invasion of the west coast was still a serious possibility as of summer 1942 (after the U.S. victory at the Battle of Midway, it wasn’t); and whether mass, indiscriminate exclusion and detention was necessary, versus individualized screenings of suspected spies. (When he was Acting Solicitor General, Neal Katyal formally apologized on behalf of the Office of the Solicitor General.)
But Korematsu was the second internment-related case that the Court decided on that blustery December Monday. History has all-but forgotten the first—a case about a 24-year-old U.S. citizen of Japanese descent named Mitsuye Endo. That’s too bad, because the Court’s unanimous decision in Ex parte Endo was supposed to close the internment camps. Had it, history might remember the Court’s role in internment somewhat differently.
Excellent histories of the internment policy, including its odious origins, abound. For one with a particular focus on litigation challenging it, consider Peter Irons’s Justice at War. A more comprehensive summary is the 1980s-era final report of the congressionally created Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied.
To make a long story short, the three key legal moments were February 18, 1942, when President Roosevelt issued Executive Order 9066—authorizing military authorities to identify “military areas” from which any individual could be “excluded”; March 2, when Lt. Gen. J.L. DeWitt issued “Public Proclamation No. 1,” designating much of the West Coast as a “military area” covered by the Executive Order; and March 21, 1942, when Roosevelt signed into law a cryptic statute that made violations of such exclusion orders misdemeanor criminal offenses, thereby giving those orders teeth. DeWitt subsequently issued a series of curfew and exclusion orders. The former imposed curfews on anyone of Japanese descent residing in designated military areas; the latter required their exclusion and relocation to internment camps hundreds (if not thousands) of miles away. (Of course, calling them “camps” underplays the extent to which they were effectively prisons for those convicted of no crime.)
Most of the more than 120,000 Japanese nationals and American citizens of Japanese descent covered by the exclusion and relocation orders complied with them (losing their homes, their livelihoods, and those possessions they couldn’t take with them). But a handful did not, and challenged their criminal convictions for violating those orders. Those challenges led to three of the four internment-related cases to reach the Court: Hirabayashi v. United States, Yasui v. United States, and Korematsu. In June 1943, the Court unanimously upheld the convictions for violating curfew orders in Hirabayashi and Yasui, albeit on incredibly narrow grounds. 18 months later, in Korematsu, the Court twisted itself into a pretzel to uphold Fred Korematsu’s conviction for violating an exclusion order. (All three convictions would be vacated in the 1980s, thanks to the work of the CWRIC and countless others.)
But the fourth internment case to reach the Court followed a very different path. Endo was one of the overwhelming majority of internees who left her home when ordered and relocated at the government’s direction (in Endo’s case, first to the Tule Lake camp in California, and then to the Topaz camp in Utah). Thus, her legal challenge to internment was not a challenge to a criminal conviction; it was framed as a habeas petition challenging the legality of her confinement without trial. What’s more, in a remarkable act of selflessness, Endo rejected an attempt by the government to moot her specific case, turning down an offer to be released on condition that she not return to the West Coast, and opting instead to remain at Topaz and continue pressing her appeal.
The Court heard oral argument in Korematsu and Endo on October 11 and 12, 1944. And although the Justices were bitterly divided in Korematsu, they were unanimous in Endo that Endo should be freed. The majority opinion, assigned to Justice William O. Douglas, avoided couching the holding in constitutional terms (concurring opinions from Justices Owen Roberts and Frank Murphy were far more direct on the constitutional issues). Instead, Endo’s core holding is that Congress had done nothing to authorize the long-term detention of those who had not violated the March 1942 criminal statute. (The Non-Detention Act, enacted in 1971, is often described as a repudiation of Korematsu. It isn’t; its requirement of specific statutory authority for the detention of any U.S. citizen would have been satisfied in Korematsu. It’s better understood as a codification of Endo.)
But the Justices fully understood that their bottom line—that the government had no statutory authority to intern “concededly loyal” citizens like Endo—would close the camps. Even if the government could have made different arguments about Japanese nationals, or about individual internees about whom it did have security concerns, the camps were based on a suspicion-less model that the Supreme Court in Endo categorically repudiated. Before the Battle of the Bulge in Europe or the Battle of Leyte Gulf in the Pacific, the Court was ready to put an end to internment as a policy.
And when the decisions in Korematsu and Endo were finally handed down on December 18, Endo even came first—since its author, Justice Douglas, was junior to Korematsu’s author, Justice Black. Given all of this, why wasn’t (and why isn’t) Endo a bigger deal?
The answer is because the Roosevelt Administration beat the Court to the punch. On Sunday, December 17—just one day before the Court would hand down Korematsu and Endo—the government issued Public Proclamation No. 21, announcing the closure of the camps as of January 2, 1945. Thus, it wasn’t Endo that closed the camps; it was the beneficence of the Executive Branch.
Of course, this timing was no coincidence. In a fantastic 2003 essay in the Harvard Law Review, “Remember Endo?,” my former University of Miami colleague Patrick Gudridge surveys the copious evidence that the White House had been tipped off about the forthcoming ruling in Endo, whether by Justice Frankfurter (who continued to serve as an informal advisor to the President once he was on the Court); or by Chief Justice Stone (or, as is most likely, both). Indeed, Justice Douglas had grown so impatient with the Court’s delay in handing down Endo (which had been ready to go before Thanksgiving) that he sent several angry memos to the Chief Justice urging the release of the ruling.
Whether Stone was stalling to give the government the chance to go first, or whether the government rushed into action (announcing the closure of the camps on a Sunday?) once the date for the rulings was finally set, it seems clear that the December 17 announcement was meant so that the camps would be closed “voluntarily,” and not by judicial decree.
As Gudridge’s essay notes, it’s fascinating to imagine what would have happened if history had gone a different way—if the decision in Endo had directly closed the camps. Would we look back on Korematsu differently? Would the Court have shown more of a backbone during later wars (especially Vietnam) if it had received broad acclaim for such a meaningful pro-civil-liberties ruling while the Second World War still raged (versus the celebrated Civil War-era ruling in Ex parte Milligan, which came in April 1866, nearly a full year after the guns had fallen silent). Would it not have taken quite so long to fully tell the story of the nefarious decisions that led more than 120,000 American citizens and Japanese nationals into the camps?
Whatever the answers to these counterfactual questions, it remains the case that, in Ex parte Endo, the Supreme Court tried to close the internment camps. And it is likely that the reason why the Court to this day receives so little credit for that attempt is because some of its members spilled the beans.
SCOTUS Trivia: Who Was the Briefest-Serving Justice?
Depending upon who you ask, Justice Ketanji Brown Jackson either crossed a milestone last week, when she served her 164th day in office, or will cross it next September 26 (happy 44th birthday to me!), which would be her 453rd day as an Associate Justice. The milestone is “briefest tenure among Supreme Court Justices,” and the reason for the confusion is itself … not entirely clear.
Everyone agrees that James Byrnes served 452 days on the Court—from his July 8, 1941 swearing in to his resignation on October 3, 1942, so he could run the newly created Office of Wartime Stabilization. From the Supreme Court’s perspective, Byrnes holds the record for shortest completed tenure.
There is at least some contrary evidence, though, that the person right behind Byrnes on the Court’s official list ought to be first—Associate Justice Thomas Johnson (no, not that Thomas Johnson). The Supreme Court’s own website treats Johnson as having served 485 days in office (September 19, 1791 through January 16, 1793) before resigning in protest over the travel obligations, especially the costs and imposition of riding circuit. His resignation letter to President Washington is … something. (Johnson was also the first Justice to be nominated and confirmed to fill a vacancy, after the original six were appointed in 1789–90.)
But numerous other sources claim that Johnson served only 163 days, because he didn’t take the oaths of office until the beginning of the Court’s August 1792 Term (which is the first time he appears to have taken any official act, dissenting in Georgia v. Brailsford). Brailsford itself may be the best evidence in support of this view, for Alexander Dallas, the not-quite-official reporter of the Court’s decisions (more on that in a future issue), included the following note right before it:
If Johnson was not “qualified according to law” (which is almost surely a reference to taking the oaths of office) until the beginning of the August 1792 Term (August 7, 1792), then the Court’s website is incorrect about Johnson’s tenure; receiving a commission isn’t enough—just ask Justice Jackson, who received her commission on April 8 of this year, but wasn’t sworn in until June 30. And I’ll just say, speaking for myself, that I think this reading is the far better view of the relevant sources. If nothing else, that means that, as of last week, the Court’s newest Justice is no longer the briefest-serving Justice in its history.
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Happy Monday (and Happy Hanukkah), everyone! Have a great week!