Korematsu vs. United States: A Supreme Court Decision that Sucked

In 1942, the U.S. government rounded up citizens and forced them into concentration camps. Between the two countries, over 140,000 people were removed from their home and interned without legal recourse. In many cases, their captors–the U.S. military–sold off their houses, businesses, and belongings for a fraction of their worth, or their former neighbors simply took what they wanted. Many, many scholars have demonstrated that the forced internment of Japanese American internment camps was racially motivated. That wasn’t a secret. Lawyers and activists were writing about the injustices of Japanese internment at the time it was happening. And that racism was made precedent in 1944, when the US Supreme Court upheld the conviction of Fred Korematsu, a birthright American citizen, who tried to remain in his home in the months after General John L. De Witt declared that people of Japanese descent were to be shipped to a holding center. In today’s episode, the USSC decision that sucked is Korematsu vs. United States 323 U.S. 214.

Transcript for: Korematsu vs. United States

Written and researched by Averill Earls, PhD

Averill: In 1942, the U.S. government rounded up citizens and forced them into concentration camps. Over 100,000 people were removed from their home and interned without legal recourse. In many cases, the U.S. military sold off their houses, businesses, and belongings for a fraction of their worth (addendum: the citizens and Issei were forced to sell, which is different but amounts to the same forced loss of property), or their former neighbors simply took what they wanted. Many, many scholars have demonstrated that the forced internment of Japanese American internment camps was racially motivated. That wasn’t a secret. Lawyers and activists were writing about the injustices of Japanese internment at the time it was happening. And that racism was made precedent in 1944, when the US Supreme Court upheld the conviction of Fred Korematsu, a birthright American citizen, who tried to remain in his home in the months after General John L. De Witt declared that people of Japanese descent were to be shipped to a holding center. In today’s episode, the USSC decision that sucked is Korematsu vs. United States 323 U.S. 214.

I’m Averill Earls

And I’m Elizabeth Garner Masarik

And we are your historians for this episode of Dig!

Elizabeth: We are so thankful for all of our Patreon supporters – especially our Auger and Excavator level patrons: Eliza, Rachel, Joey, Jessy, Colin, Lauren, Karen, Megan, Edward, Denise, Susan, Maria, Alissa, Ben, and Lisa. A special thanks to our newest Auger, Colleen! We can’t thank you enough. Listener, if you enjoy what we do here but aren’t yet a patron of this show, it’s easy: just go to patreon.com/digpodcast to learn more.

Averill: So as you all know by now, I am not an Americanist. And generally on this podcast, we don’t need me to be an Americanist, because we’ve got two of ‘em that do plenty of US-centric history up and down the Dig catalog. As such, was this my favorite episode to write? Definitely not. Mostly because whenever I write an episode that is about US history, it makes me mad. It makes me think, what the actual fuck are we doing? I hate it here. I hate everyone. But also doing these episodes means I have to do extra work because I have to learn a whole new historiography and read book reviews and orient myself in ways that aren’t useful to me outside this here podcast because I will never teach a US history course and I will almost certainly never write (another) book about the US. Unless I write a book about sex and the Irish-American diaspora. Or if my beloveds on this podcast convince me to do another book which will almost certainly have to be US-based because we can’t afford for all four of us to go on an archival trip anywhere else (among other reasons). Anyway. What that means is that, as usual, I relied on the very hard work of scholars of the US to write this episode. In particular the works of Brian Masaru Hayashi, Lorraine K. Bannai, Hayley Johnson, Sarah Simms, John E. Schmitz, and Masumi Izumi were essential to shaping my understanding of the human cost of the US’s internment of people of Japanese descent. Charles McClain also put together a fascinating edited volume that includes essays on Japanese-American’s quests for legal redress, with pieces dating from the early 1940s through the 1990s. I’ve also put a further reading section in the bibliography, because there’s actually kind of an enormous amount written about the before, during, and after of the internment, including a very recent book by one of my colleagues at St. Olaf, Ka Wong’s Enmity and Empathy. The bibliography and further reading section are by no means exhaustive, and there’s always more to learn, and I’m so thankful to the folks who are doing this work – because it was emotionally exhausting for me to study this for a few weeks, so I can’t imagine doing it for years on end. You’ll find those books and more at our website, digpodcast.org.

Elizabeth: A couple brief notes of clarification. First, terminology. In this episode we’re going to discuss two legal categories of Japanese-descended people: those born in the US who, through birthright citizenship, were citizens, and those who were immigrants and thus, under the racist naturalization laws, were unable to become citizens. After working on this episode for a few weeks, Averill got really sick of writing “Japanese-Americans” and “Japanese immigrants” or “Japanese-descended people.” We’ll still use that terminology plenty, but in Japanese there are specific and blissfully shorter words that describe the same legal categories. “Nisei” is a Japanese word for ethnically Japanese children born in the new country to Japanese-born immigrants. “Issei” is a Japanese word for Japanese immigrants. “Nikkei” refers to Japanese emigrants and their descendants who have created communities throughout the world. It’s also the name of a major Japanese newspaper, but we won’t be using the newspaper in this episode, so don’t let it confuse you. We’ll use these three terms as appropriate throughout the episode.

Averill: Second, to say that while we’ll mostly be focused on the injustices committed against Japanese-descended people in the US during WW2, this was not exclusively a US American problem. Anti-Asian organizations and individuals harassed and lobbied against people of east Asian descent in both the US and Canada for over a century. In Canada, most of the people of Japanese descent lived in British Columbia, on the west coast. Most were also citizens, because of Canada’s “colorblind” naturalization laws. In the U.S. people of Asian descent were not allowed to naturalize until the mid-20th century. The 1790 Naturalization Act limited citizenship naturalization to “free white persons.” That law was upheld by the Supreme Court in 1922 by Takao Ozawa v. United States, and in 1923 throughUnited States v. Bhagat Singh Thind, both of which determined that “whiteness” was a social construction (or “common understanding”) and that neither Japanese people nor Indian people met the requirements. (In other words, the shittiness of Korematsu was preceded by equally shitty USSC decisions. Working on this episode has been really fun.)

Elizabeth: As Marissa taught us in her last episode, United States vs. Wong Kim Ark affirmed the birthright citizenship granted by the Fourteenth Amendment in 1898. Children born in the United States, regardless of their parents’ citizenship status, are guaranteed citizenship (with only four exceptions, as dictated by law). So of the tens of thousands interned during World War 2 (and after), over 90,000 were citizens of the U.S. or Canada (70,000 US, 20,000 Canadian). The interned represented 90% of the US and Canada’s total Japanese-descended population–though people of Japanese descent only made up a fraction of a percent of the total U.S. population. Even in California, Washington, Oregon, and British Columbia where they were concentrated, Japanese-descended people made up less than 2% of the total population.^[1] So all that is to say that Canada was just as racist and terrible as the US.

Averill: Fred Korematsu was born in January 1919 in Oakland, California. His parents, Kakusaburo Korematsu and Kotsui Aoki, immigrated to the United States in 1905. They ran a flower nursery, and sent their four children to public school. According to his biographer, he encountered government-issued racism when an army recruiter came to his highschool and handed out pamphlets to all his white friends but not to Fred. The recruiter told him “We have orders not to accept you.” But he also experienced anti-Japanese racism at the local level: his girlfriend was Italian, and her parents felt that Japanese people were unfit to mix with white people.^[2]

Elizabeth: After high school, he trained to be a welder. His first full-time job didn’t last long; his co-workers stole his timecard and told him that since he was Japanese, he wasn’t allowed to work there. His next job went the same way; he was fired after a few weeks when the supervisor returned from vacation and fired him for being Japanese. He was 21 when the Imperial Japanese Army attacked Pearl Harbor and the US declared war on Japan, Germany, and Italy. When he was fired again, he attempted to enlist in the military, but was denied. They wrote “stomach ulcers” on his rejection, though based on his earlier experience with military recruiters, they probably rejected him because he was Japanese. He and Ida planned to run away together, to Nevada or the Midwest.

Averill: According to Eugene Rostow, writing in June 1945, in the first month after the Japanese attack on Pearl Harbor, there was “no special security program” for the West Coast, nor was there any “general conviction that a special program was needed.”^[3] Many white people were arrested and convicted as Japanese agents, but no Japanese American (as of June 1945) had been convicted of sabotage or espionage. From his vantage point, “anti-Oriental agitators” were responsible for campaigning to intern ethnic Japanese people, both US citizens and immigrants. The military didn’t act just because the Anti-Oriental delegation pressured the West Coast Congressional delegation to remove persons of Japanese descent from the west coast states; they waited for full legal authority, which was granted by Franklin Roosevelt.

Elizabeth: On February 19, 1942, Roosevelt issued Executive Order No. 9066, which declared that “…war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities …[and]… authorize and direct the Secretary of War, and the Military Commanders […], 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.”

Sign posted notifying people of Japanese descent to report for incarceration

Averill: Using the Executive Order as grounds for action, General John L. De Witt issued the order that the entire west coast, between the Pacific Ocean and the Rocky Mountains, was a military area, and then ordered the “exclusion” of all people of “Japanese ancestry.” He issued 108 exclusion orders between March 24 and July 22, 1942, and gave people six days’ notice before they were to be “excluded” from their subdivision in the “military area”.

Elizabeth: In March 1942, San Leandro, where the Korematsu family lived, was given an exclusion order. They were not to leave the area until they were transported by the military to a “safe zone”. Fred refused, and went into hiding in the Oakland area. His parents and siblings were taken to an old horse track that the military converted into a detention center. Fred underwent plastic surgery on his eyelids and changed his name to Clyde Sarah.

Averill: Historian Heidi Kathleen Kim argues that Korematsu’s attempt to change his appearance and his name–on his draft card–to “appear Caucasian”–points to the specific physicalities of race construction at mid-century. In December 1941, Time magazine published a now famous article instructing Americans on how to tell Japanese people from Chinese people, with photos and diagrams.^[4] In 1983, when he was again appealing his criminalization, Korematsu’s lawyer said that “[f]rom the time of his arrest to the present, accounts of his case have uniformly portrayed Korematsu as a young man impelled by romance alone, and whose effort to change his features was a bizarre response to DeWitt’s exclusion order.”^[5] Kim points to his surgery as a reflection of the raced Japanese body, which he internalized and thought changing might save him.

Elizabeth: But he was eventually caught, arrested and charged. The ACLU visited him in jail, and asked if he’d be willing to run as a test case to challenge the exclusion order. He agreed.

(If you just finished listening to Marissa’s episode, you might note that this seems to start a bit differently than what we saw in the Ark case – in that case, the customs agent that denied Ark entry to the US was working with anti-Asian organizations to try and create a court case that would kill birthright citizenship – similar to what Trump’s government did last year, and which was shot down by the USSC in July 2026. As far as we know – though we could be wrong – Korematsu wasn’t trying to position himself as a test case to get to the Supreme Court, but the ACLU had been taking cases from as early as 1942 to poke holes in the militarization and exclusion orders, and Korematsu’s specific circumstances were just different enough that his lawyer thought they’d get a different result than the previous cases. At that point, Nisei cases had not been successful at that point. In 1943, the Court held that the curfew imposed by General DeWitt was within the joint war powers of Congress and the president in both Hirabayashi v. United States and Yasui v. United States. Of the four USSC cases of Japanese-Americans suing the US government, only one found in favor of the citizens. We’ll come back to Mitsuye Endo and her 1944 case in a bit.)

Averill: Korematsu was tried and convicted in a federal court in September 1942 for a violation of Public Law No. 503, which criminalized the violations of military orders issued under the authority of Executive Order 9066. He was taken to the horse track where his family was held; eventually they were transferred to the Central Utah War Relocation Center Topaz, Utah. He was expected to work 8 hour days for $12 per month. In the first detention center, he and his family slept in horse stalls. In the next, the six of them shared two dusty barracks rooms.

Elizabeth: According to one account, “Other detainees and Korematsu’s family disapproved of his decision to defy the government order. He later shared, ‘All of them turned their backs on me at that time because they thought I was a troublemaker.’” And it was true that very few resisted the initial detainment. They were eager to prove their loyalty to the United States. Of course, Japanese loyalty didn’t matter. The US military actively suppressed evidence of the loyalty of the detainees to keep them imprisoned, some for three or more years. The military used the straw man of war to disenfranchise and rob their victims, and the US Supreme Court enabled those injustices.

Averill: Korematsu’s lawyer, Ernest Besig, appealed his conviction. It was upheld in 1944 in the US Court of Appeals. When they got to the Supreme Court, Korematsu gave testimony. He spoke about why he stayed: he had a good relationship with his neighbors, including the young woman he was dating, and he considered himself an American. His loyalty to the United States was unquestionable. In the Supreme Court decision, the justices agreed that he was and remained loyal to the United States. But the court ruled against Korematsu. On December 18, 1944, in a 6–3 decision, the Court held that compulsory exclusion, though constitutionally suspect, was justified during circumstances of “emergency and peril.”

Elizabeth: The majority decision was written by Justice Hugo Black. He used the previous year’s decision in Hirabayashi vs. United States, supra, which also endorsed General De Witt’s March 24, 1943 curfew for people of “Japanese ancestry.”^[6] In Hirabayashi, Chief Justice Harlan Fiske Stone wrote that General De Witt’s curfew targeting “Japanese” people–and only Japanese people–fell within the scope of the “combined war power of Congress and the Executive…[if] in light of all the facts and circumstances there was any substantial basis for the conclusion…that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion.”^[7]

Averill: The USSC decided that the single attack on Pearl Harbor by the Japanese military warranted widespread discrimination against people who looked like the bombers, regardless of their actual political affiliation or citizenship. Significantly, of course, the same indiscriminate discrimination was not applied to people of German or Italian ancestry. Nor was the curfew set and enforced on white people who sympathized with the Japanese. Most historians and legal scholars agree that DeWitt’s actions in California, Oregon, and Washington reflected the white nationalist and hierarchical racialized thinking that had roots in the eighteenth century but had hardened and been baked into the very framework of the United States.

Elizabeth: Historian John Schmitz points out that in total, more Germans and Italians were arrested and “relocated” than Japanese Americans. And that’s true, because there were simply more Germans and Italians in the US in 1941 than Japanese-descended people. But the treatment of Germans and Italians was fundamentally different, shaped by white American’s perceptions of “Asians”, and the particular anti-Asian sentiment and laws – many of which Marissa discussed in her episode – that shaped life for Japanese-descended people before, during, and after WW2. The very system of immigration, and the experiences of immigrants once they arrived in the US, was different for Japanese people than for German or Italian. Germans and Italians had been permitted to immigrate into the United States with far fewer barriers compared to Japanese people. After nearly 80 years of open immigration, the US first implemented a quota system for German immigrants in 1924, limiting new immigrants to 25,957 per year. Between 1931-1940 alone, 115,000 Germans emigrated to the United States, most fleeing Nazi persecution.

Averill: In contrast, Japanese immigration had been limited to the time period between 1894 and 1907, starting with a treaty that guaranteed free immigration to the US from Japan, and ending with the “Gentlemen’s Agreement.” Anti-Japanese discrimination in California (where most Japanese immigrants settled) accelerated in the early 1900s, which included the forced segregation of Japanese children into their own schools. Segregation was ultimately unfeasible, since there were only 90 or so students; instead, the school board forced the children to go to “The Oriental Public School for Chinese, Japanese, and Koreans.” Many couldn’t attend, because it was too far from where they lived.

Elizabeth: After 1907, Japan agreed to curtail immigration to the US in exchange for a guarantee that the “US would accept the presence of Japanese immigrants already residing there; to permit the immigration of wives, children, and parents; and to avoid legal discrimination against Japanese American children in California schools.” Teddy Roosevelt, who was said to respect Japan (especially after Japan defeated the Russians in 1905) made the “Gentlemen’s Agreement” with the Japanese government. Notably, of course, the 1924 immigration act put a full moratorium on immigration from almost every other Asian country. And, as Marissa covered in her Ark episode, Chinese immigrants who were in the US either as “paper sons” or who’d arrived before 1924 couldn’t naturalize until 1943, and even then only because the US military needed bodies to throw at the Second World War. Japanese immigrants–including some 20,000 interned without due process between 1942-1945–were not allowed to naturalize in the US until 1952.

Averill: The very need for the “Gentlemen’s Agreement” because of anti-Asian and anti-Japanese violence in California speaks to the kind of regional, and national, discrimination that the Japanese faced in the decades before WW2. Which is not to say that German and Italian immigrants didn’t experience discrimination in particular periods. Certainly they did. Anti-Catholic nativism made life miserable for both Irish and German immigrants in the 1840s and 50s. That’s at least in part why there were isolated German-speaking communities across the US, though they dwindled after the US entered WW1. The 1924 quota on Italians was far stricter than on Germans, and while Protestant violence against Catholics largely declined by the time Italians immigrated in large numbers in the 1880s, their communities have been subject to distrust and stereotyping.

(Yes, I know, how generous of the Protestants to stop harassing their Catholic neighbors and community members. This podcast series is turning me into a misanthrope.)

Elizabeth: But by 1941, Germans and Italians were, per “common understanding,” white. German and Italian immigrants could go through the naturalization process. Franklin Roosevelt intentionally appointed people of German descent to important positions, like Dwight Eisenhower. Neither he nor anyone else in the US government extended the same kind of bridge-building courtesy to any Nisei. Racial exclusion was the letter of the day. So yes, there were more German and Italian nationals in the United States who were arrested and imprisoned. But that had a lot to do with the fact that there were simply more of both nationalities in the US than Japanese. Schmidt’s “what about the suffering of the German aliens” argument is pretty bleh in an otherwise interesting book.

Averill: (And as an aside, we do not like the use of “aliens” to refer to people based on their immigration status, documented or otherwise. Yes, it is a legal term – but I can think of a lot of ‘legal terms’ in various state and federal laws that we have collectively decided are inappropriate and abandoned. ‘Aliens’ is intentionally dehumanizing. D. Oullet has a great piece about the “othering” that language around immigration does in Harvard’s Epicenter.)

(Also as an aside, perhaps the most interesting thread in Schmitz’s book is a discussion of the German, Japanese, and Italian nationals that the US took (kidnapped? presumably) from parts of Latin America in order to use them in hostage exchanges. In addition to bringing the East and West coast military treatment of “enemy aliens” into conversation, he contextualizes the internment camps within broader military anti-espionage efforts. You can read more about it in his book. But, as one reviewer notes, “The book’s bibliography and many of the simplistic and faulty descriptions of the state of Japanese America before and during World War II reveal that the author was ill-prepared to explain how issues of national security, loyalty, and race intersected with one another when Japanese Americans were locked up in the inland concentration camps.” I’ve included some books in the bibliography that better engage the racialized, anti-Asian ideology that infected west coast American politics, housing, etcetera. And again, Marissa’s episode captures a lot of those issues regarding Chinese immigrants and birthright citizens.)

Elizabeth: Schmitz uses the stark contrast of Hawaii to demonstrate the “pragmatic” and evenly distributed internment of Japanese, German, and Italian nationals. According to his research, “By December 9 the FBI had taken into custody 93 German, 13 Italian, and 391 Japanese aliens in Hawaii out of 620 German, 98 Italian, and 1,212 Japanese aliens… Mass evacuation, Chief of Staff George Marshall and Admiral King informed FDR, was “not feasible.””^[8]Eugene Rostow, writing in 1945, also emphasized that it was logistically impossible for the US military to move or even detain all of the people of Japanese descent in Hawai’i. They made up some 32% of the island chain population.^[9] Instead, they were much more precise in their arrests and detainments, targeting individuals for whom there was some evidence of disloyalty.

Averill: Rowstow also points out that being “disloyal” is not actually a crime in the US, that treason has a very narrow definition in the US Constitution, and that free speech, including around political views, is protected by the Bill of Rights. So the very justifications that the military used to make arrests and detainments were unconstitutional, regardless of the Executive Order or military conditions. Nonetheless, the situation in Hawai’i was very different from what the US military did in west coast states.

Elizabeth: And that difference is important. Ninety percent of all Japanese immigrants and US citizens of Japanese descent in California, Oregon, and Washington were interned. “Only” (in Schmitz’s words) 1,875 of the Japanese Hawai’ians were interned, because…First, they were an indispensable part of the Hawaiian economy. Second, evacuating and interning 37 percent of the population was impossible. Third, almost 80 percent, or roughly 120,000, were citizens.”^[10] As Schmitz points out, there were millions of German and Italian-descended citizens by the 1940s, but General DeWitt proposed delaying the wholesale movement of Germans and Italians until “his organization has gained experience with the Japanese.’”^[11]

Averill: In total, approximately 10,000 West Coast German and Italian immigrants–unnaturalized–were forced into camps, out of a population of 85,000 nationals in the three states. Schmitz doesn’t clarify how many total people of German and Italian descent lived in Oregon, California, and Washington, but it was undoubtedly in the hundreds of thousands if not more. He compares the internment of the 10,000 of 85,000 German and Italian nationals as a “practical” approach; the US military simply couldn’t arrest or “relocate” all 85,000 known “aliens”. But, of course, they could have, because they did that and more to the Japanese: the US military forcibly removed 90% of the Japanese-descended population of California, Oregon, and Washington, totaling over 120,000 people, and transported them to concentration camps run by the Justice Department and War Relocation Authority (WRA).^[12] Of the 120,000, 70,000 of those people had never even seen Japan, because they were born in the US. Those 70,000 were interned at the same camps as the 10,000 German and Italian nationals that the government suspected (whether or not they had evidence) of being sympathetic to the German and Italian governments.

Elizabeth: Schmitz never suggests that interning the Japanese was right or reasonable, but in his effort to treat the US internment of Japanese-descended people he (hopefully unintentionally) downplays the particular racial conditions that shaped the lives of Japanese people before, during, and after WW2. As Asian studies scholar Brian Masaru Hayashi points out, “Even though more Germans were interned and more Japanese were paroled by the FBI, a Western Defense Command ofﬁcer admitted that Japanese Americans were initially interned on far slimmer evidence than German Americans.”^[13]

Averill: Internment happened in stages over the first few months after Japan attacked Pearl Harbor. First the US military impounded the assets of Issei and Nisei, to limit their mobility. Then the military conducted targeted arrests of individuals they suspected of espionage. But, as Hayashi points out, DeWitt grew increasingly nervous about the potential threat of both Issei (Japanese immigrants) and Nisei (Japanese Americans). In the Philippines, there were reports that Issei would join with the Imperial troops if and when they invaded the American base; General Douglas MacArthur allowed five Japanese immigrants to be shot and killed by Filipino police in retaliation for Imperial navy bombardment of the Philippines town.^[14] But the US military and FBI didn’t have strong intelligence to go on.

Elizabeth: Without clear individual targets, they moved to loyalty tests. For a brief period, they invited Japanese-descended people to voluntarily abandon their homes in California, Oregon, and Washington and submit to loyalty tests and “temporary” relocation. That was, unsurprisingly, largely ineffective, though some really patriotic individuals did accept that invitation.^[15] But by March 1942 DeWitt had issued orders that put Japanese people under curfew and limited where they were able to travel, and followed that up with forced removal. Region by region, the military rounded up every Japanese-descended person they could find, loaded them on buses and trains, and took them to hastily-made camps in interior states.

Averill: The camps were awful. Overcrowded, unsuitable make-shift sites, barbed wire fences and guards. There was no due process. They were put to work for pennies a day picking cotton and harvesting food. The language that the military, the federal government, and defenders of internment used–”military necessity”–was bandied about, even by officials who were willing to entertain the idea that there were loyal Japanese people and disloyal, and that the two should be treated differently. “Military necessity” was ultimately foundational to the Supreme Court’s logic justifying mass incarceration without trial, despite its blatant and obvious constitutional contraventions.^[16] Quite evidently there were more compelling reasons–pressure from anti-Asian lobbyists in CA, WA, and OR; need for domestic forced laborers; racism within the US military and government–to pursue and maintain mass internment.^[17] There were technically conditions under which a “verified” loyal citizen (but not Japanese nationals) could leave, but the actual requirements were so absurd as to make it near impossible.^[18] After they passed the “loyalty” tests, those who wanted to leave had to have a home to return to, with approval from an employer and friends who would vouch for them. The barriers were immense.

Tanforan Assembly Center, 1942. Former horse-racing track

Elizabeth: For Korematsu, after his conviction, leaving wasn’t an option. But even for his family, interned first in Tanforan and later forced to pack up a second time and move to the desert in Utah, they had no feasible way to go home.

The official War Relocation Authority (WRA) was created by the Executive Order 9066 to “provide” for the wartime movement of populations. On paper the WRA “adapted” the Tanforan racetrack to house the people they relocated. According to administrators, the internees turned the camp into “the semblance of a living community of business, social, spiritual, educational, recreational and leisure time activities” in the five months it was open.^[19] In reality, life at the horsetrack was pretty miserable. People struggled to get used to being locked up in a barbed-wire-surrounded camp. Lines for food were long, electricity was unreliable, and privacy was almost nonexistent. By September 1942, Tanforan–which was obviously not in any way supposed to support human habitation–housed eight-thousand people. Eventually the WRA moved the internees to a new camp in Topaz.

Averill: A small group of people founded a newspaper not long after the Tanforan camp first opened. In their last issue, they reflected on their shared experiences in the camp. The editors recalled May, “month of the first–and hardest–adjustments to the new mode of life.” 400 bachelors crammed into horse stalls as sleeping quarters, dust blown in from the daily northwest wind, “the long grandstand mess queues in which you stood thrice daily, rain or shine, hot or cold, wondering if journey’s end would reward you with fare more palatable than you had the meal before.”^[20] The newspaper contained a few snippets of information about the place they were all going, reported back from those sent on early. In facing the unknown, the newspaper editors offered memories more hopeful–a reminder, perhaps, that they survived and even built a kind of community in one shit hole, and could do it again. They wrote about the May 4 opening of Tanforan’s first library, the May 25th opening of a school for first through third graders, the May 11 first baby born in Tanforan.^[21]

Former horse stalls converted for temporary occupation by Japanese American internees at Tanforan Assembly Center, San Bruno, California, 1942

Elizabeth: Unsurprisingly the summary of the four months corralling people in a horsetrack complex was markedly different from the administrators–the prison warden–to the detainees’ own experiences, but what modicum of community emerged was entirely facilitated by the people held in captivity. As Rostow put it in 1945, even the early reports about the internment camps were sites of “humiliation of evacuation…compounded by a regime which ignored citizens’ rights, and the amenities which might have made the relocation process more palatable.” They were, “in fact, concentration camps.”^[22]

Averill: Rostow notes that, among other issues with the Korematsu vs United States decision, by the time Korematsu made it to the Supreme Court, the US was winning the war. They hadn’t suffered a defeat since July 1942 in Tobruk, the emergency of Pearl Harbor was done and over. There was no immediate pressure that demanded the USSC to disregard civil liberties and rights in favor of wartime panic. Significantly, the justices decided that “the scope and method of judicial review of the military” did not exist.^[23] For those who might want to see limitations on the ability of the US military to act on US soil, against US citizens, it was a dangerous precedent to set.

Elizabeth: But Korematsu v United States–while a shitty decision–wasn’t the only Nisei case that the USSC decided in December 1944. The Court announced its decision on Endo vs United States the same day–December 18, 1944. Endo was born in the US, could not speak or read Japanese and had never been to Japan. She was 22 and working at the California DMV, but, like Korematsu and thousands of others, was harassed and then fired after Pearl Harbor. The Japanese American Citizens League (JACL) hired San Francisco-based lawyer James Purcell, who picked Endo out of a long list of test cases. He filed a habeas corpus petition in 1942, by which time Endo had been moved to the Tule Lake WRA camp. Of the 10 concentration camps the WRA created to imprison Nisei and Issei, Tule is best known as the place where, after 1943, internees went if they “failed” the “loyalty questionnaire.” When Tule was designated for the “disloyal,” Endo was transferred to Topaz, where Korematsu and his family ended up. The judge assigned to Endo’s initial habeas case let it sit for a full year, and then dismissed it. Purcell appealed. Before Endo even made it through the Circuit court, the USSC agreed to hear her case. The ACLU decided that they’d have the best chance if they argued Korematsu and Endo together. Purcell and Besig presented their cases to the Court in October 1944. Endo was the first of the Nisei challengers to the barbarous internment who won. The Court decided unanimously that the federal government could not *indefinitely* intern Nisei who were “concededly loyal” in War Relocation Authority (WRA) camps. The decision prompted the War Department to lift the exclusion order from the West Coast, which allowed for the eventual closing of the concentration camps. Thousands of Nisei were able to return to their homes.

Averill: Of course, for Fred Korematsu, his legal battle wasn’t over. Like the other Nisei who proved their “loyalty,” he was allowed to leave the Topaz camp. He didn’t go home to California, though. While many did, Fred Korematsu decided that there was no home for him in San Leandro anymore. He moved to Detroit, Michigan. He met a white woman named Kathryn, and they fell in love and married in October 1946. (Guess where they honeymooned? I’ll tell you after you guess). When they were dating, they talked about his Supreme Court conviction. In Kathryn’s recollection, “he expressed disappointment and thought that the Supreme Court’s decision was wrong—“racism, pure and simple”—but he was never bitter.”^[24]

Elizabeth: Fred assumed he was done with California entirely. But when he and Kathryn were visiting his sick mother, Kathryn learned she was pregnant. By September 1950, they had an apartment, he had a job in drafting, and they welcomed a daughter. Finding work wasn’t easy for Fred. As he recalled,

Averill: When I first came back to California after the evacuation was over, … I wanted to be a real estate broker like [my brother] was. The application asked if I had a prison record. I knew it was useless to apply, I knew they would turn me down. Also, any state or federal job application had the same thing, so I knew I couldn’t get a job in those places. I wanted a job in a big firm like Bechtel, which has retirement benefits and good profitsharing and such, but the applications asked if you have a criminal or prison record and I said yes. And I never heard from them.^[25]

Elizabeth: They made a life for themselves in California, despite Fred’s limited job opportunities. He did contract work or found positions with smaller firms to provide for his family and allow Kathryn to stay home with the children. They were members of a Christian church, served their community through organizations like the Lions Club and the scouts with their two children, went on regular drives in their station wagon: twice across the country to visit Kathryn’s family in South Carolina, regularly along the winding routes and roads of California.^[26] They still faced discrimination. They struggled to find someone who would sell them a liveable house in the Bay area, and when they did–in a mostly white neighborhood–their children were harassed and blamed for Pearl Harbor.

Averill: Fred’s mother died shortly after he and Kathryn moved to California, and his father died about 10 years later, in 1959 at the age of 91. Fred and Kathryn stayed close with Fred’s family, so that their children would maintain connections to their Japanese heritage.

Elizabeth: In the post-war era, the Nikkei had to work twice as hard to make a living, assimilate, and raise families. They were heralded (problematically) as the “model minority” by sociologists and major magazines like Time and Newsweek. In 1966, sociologist William Petersen observed that “Barely more than 20 years after the end of the wartime camps, this is a minority that has risen above even prejudiced criticism…. Even in a country whose patron saint is the Horatio Alger hero, there is no parallel to this success story.”^[27] Of course, white people’s perceptions of the Nisei is a fractured view through a broken lens. Few Japanese-Americans were able to attain the highest levels of their professions, no matter their education or performance. And many never recovered from the trauma, disruption, and violence of internment.^[28] That Fred Korematsu managed to scrape a good life together after everything he went through – including the Supreme Court’s conviction – is remarkable.

Averill: Many third-generation Japanese-Americans, the Sansei, rejected the model minority myth all together, and formed movements in the 1970s that emulated the AIM and Black Power movements. They were the young people who pushed for the creation of Asian and Asian American Studies classes and programs on college campuses, and led legal challenges to demand redress for internment. But so few of the internees talked about their time in the camp, there was a disconnect between the Issei, Nisei, and Sansei. Lorraine Bannai, author of a biography of Fred Korematsu, interviewed Sansei Dale Minami, who later represented Fred in reopening his case. According to Minami, “You know, until the redress struggle, [the camps] weren’t discussed at all…. Almost never. It would come up in the context of, ‘Oh, that’s George Furukawa. We knew him from camp.’ Or, ‘Oh, yeah, we met them in Santa Anita when we were at camp.’ But you never heard ‘em talk about conditions.”^[29] Even Fred Korematsu’s children didn’t learn about his internment and Supreme Court conviction from him. Their eldest, Karen, learned about it when her classmate gave a presentation in junior-year social studies about Japanese internment and the landmark Supreme Court Cases.

Elizabeth: “And then [Maya] proceeded to talk about a famous Supreme Court case, Korematsu v. United States. Well, I’m thinking, well, what’s this about? I knew Korematsu was an unusual Japanese name…. And all of a sudden I had, you know, thirty-five pairs of eyes kind of staring at me, and I’m thinking, oh, this has gotta be a black sheep of the family…. The thought never even occurred to me that it had anything to do with my father … because I thought I would have been told…. I could think of everyone else but my father. Because my father just didn’t have, to me, that personality to do something that was against the law…. Certainly, if it was a famous Supreme Court case, I would have heard about it, or somebody would have said something by then.”^[30]

Averill: Even after she confronted her father about it, and he admitted, the family didn’t discuss it again. Karen’s younger brother Ken found out in the same way – at school. The same thing happened to Fred’s nieces and nephews; some were more understanding than others. According to Bannai, one niece was disappointed to learn that Fred stayed behind because he wanted to be with his high school sweetheart, when Gordon Hirabayashi and Min Yasui took their stands for civil rights. She felt he’d been selfish – he wasn’t making a deliberate stand for his community, and in doing so he abandoned his family to the first WRA camp. Though he was the third son, the expectation of filial duty was still a priority.^[31]

Elizabeth: The first time Fred Korematsu spoke publicly about his experience was in 1969, when a professor at UC Berkeley invited him to speak to an experimental class, “Asian American Studies 100X”. Fred was reluctant, but agreed. It was sitting in on that class that Fred’s daughter learned about Ida. Though the students were welcoming and kind to Fred, it was a big step after so long not talking about it. He wouldn’t speak publicly again for 13 years–when he reopened his case for redress.

Averill: After WW2, Congress passed an Evacuation Claims Act which, in theory, would allow Japanese Americans to seek compensation for losses caused by their wartime removal. In reality, few were able to provide receipts for lost property or damages. And, of course, the Act didn’t compensate those interned for the emotional, psychological, professional, and social damages of the long-term illegal detainment.^[32] After years of silence, organizations–many led by students who took those experimental Asian American Studies classes at universities around the country–put pressure on the government to make real redress for the injustice of internment. In addition to pushing for federal-level attention to the issue, the National Council for Japanese American Redress (NCJAR) and other Nikkei organizations demanded redress from the government, and reopened court cases like Fred’s.

Elizabeth: In 1980, Congress established a commission—the Commission on Wartime Relocation and Internment of Civilians (CCWRIC)—whose charge was “to review the facts and circumstances surrounding Executive Order [9066] and the impact [it] had on American citizens and permanent resident aliens [and to] recommend appropriate remedies.”^[33] The Commission heard from hundreds of Nisei. One, Congressman Norm Mineta, spoke of his and his family’s experience.

Elizabeth: My father was not a traitor. He sold insurance from a small office in our home on North Fifth Street in San Jose, California. My mother was not a secret agent. She kept house and raised her children to be what she was—a loyal American. Who amongst us was the security risk? Was it my sister Etsu, or perhaps Helen or Aya? Or perhaps it was my brother Al, a sophomore pre-med student at San Jose State. Or maybe I was the one, a boy of ten-and-a-half who this powerful nation felt was so dangerous I needed to be locked up without a trial, kept behind barbed wire and guarded by troops in high guard towers armed with machine guns.

What was it I had done that made me so terrifying to the government? Murderers, arsonists, even assassins and spies get trials. But not young boys born and raised in San Jose who happen to have odd sounding last names. Is that what this country is about?

…

I ask on behalf of the 60,000 internees who have died with their honor clouded. I ask on behalf of the 60,000 still alive and seeking justice. I ask on behalf of all Americans who believe that our Constitution really does mean what it says: that we are all created equal.^[34]

Averill: In addition to hearing individual testimonies, the CCWRIC reviewed the three Supreme Court decisions handed down during the war. In 1982, the Commission concluded that “each part of the [Korematsu] decision, questions of both factual review and legal principles, has been discredited or abandoned”, and that, “Today the decision in Korematsu lies overruled in the court of history.”

Elizabeth: While undoubtedly true, in 1982 Fred still had a conviction that was held up by the Supreme Court. Fred did not testify before the Commission. But in the time that the CCWRIC was writing up its findings, Fred accepted the help of a legal team led by Peter Irons and Dale Minami. The team found evidence that discredited the testimony General Dewitt gave in the original Korematsu case. The DeWitt statements provided to the Court insinuated that there was insufficient time to screen all the Nikkei on the West Coast, which the court held as justification for removal and exclusion. But Irons and Minami’s team found evidence that what DeWitt believed, and said, was that there was no way to tell a loyal Japanese American from a disloyal one, no matter how much time one had.^[35] In other words, DeWitt was a racist, and he ordered the exclusion and removal of the Nikkei from the west coast states based on his racist beliefs.

Averill: Bannai explains that the US military (unsurprisingly) covered up DeWitt’s racial premise for the exclusion and internment of Japanese-Americans and immigrants:

“On May 9, 1943, Bendetsen started damage control. In a telegram to General James Barnett, assistant chief of staff of the Western Defense Command, Bendetsen instructed that all copies of the initial version of DeWitt’s report be destroyed. “Take action to call in all copies [of the Final Report] previously sent to WD [War Department] less inclosures and to have WD destroy all records of receipt of report as when final revision is forwarded letter of transmittal will be redated.” On July 29, 1942, Warrant Officer Theodore E. Smith confirmed the destruction of the returned copies of the report. “I certify this date I witnessed the destruction by burning of the galley proofs, galley pages, drafts and memorandums of the original report of the Japanese Evacuation.”^[36]

Elizabeth: Bannai goes on to share Peter Irons’s recollection of presenting this information to Fred Korematsu. “After looking through the documents, page after page, for what seemed, to Peter, to be an eternity, Fred looked up. “They did me a great wrong,” he said.”

Averill: Irons reached out to Fred in February 1982. When he agreed to pursue the appeal, Irons’s considerable team got to work. In November, they filed the claim: a writ of error coram nobis, which is rarely used in the first place. The fact that Fred’s conviction happened 40 years before, and that the original judge who issued the conviction was long since dead, made the petition even stranger still.

Elizabeth: Fred’s wasn’t the only that the organizations for redress attempted. They also took up Gordon Hirabayashi and Min Yasui’s cases. The three legal teams even tried to get them consolidated in the 9th Circuit Court, but were denied.^[37]

Averill: The presiding judge, Judge Marilyn Hall Patel, delayed the proceedings for most of a year. Finally, on November 10, 1983, Fred and his lawyers went to court. Patel knew the case was a big one for the Japanese-American community, so she’d moved the proceedings to the largest available courtroom, which was normally just ceremonial. It filled, mostly with Nisei and Sansei. Patel had two requests, as summarized by Bannai: “one was the government’s motion to dismiss the original indictment against Fred, and the other was Fred’s petition to vacate his conviction on the basis of the government’s World War II misconduct.”^[38] Patel concluded that the government did not have the power, procedurally, to dismiss a charge filed and judgment finalized and then upheld in the USSC. After hearing the full argument from Dale Minami and presenting all the evidence, Judge Patel handed down her decision.

Elizabeth: Patel concluded that the government—in arguing the validity of Executive Order 9066, Public Law 503, and the removal orders before the courts in Fred’s World War II case—had relied upon “unsubstantiated facts, distortions and representations of at least one military commander, whose views were seriously infected by racism.” There was no military necessity for the exclusion orders handed down by DeWitt, which the US government knew at the time and during Korematsu’s trial and conviction. They knew that “the number of Japanese who were considered to be actually disloyal … were minimal, if any,” and that “the various acts that suggested either the potential for espionage or sabotage that had occurred or could occur in the future, were essentially non-existent or were controverted by evidence that was in the possession of the Navy, the Justice Department, the Federal Communication Commission and the Federal Bureau of Investigation” (38).^[39]

Averill: In regards to the petition of coram nobis relief, she stated that Fred Korematsu had suffered unduly because of the stigma of conviction for 40 years. She concluded that “The very nature of this conviction is injurious to a citizen because its implications are such that he is branded as disloyal”…and “The public interest and Mr. Korematsu’s interest are justly served by vacating his conviction.”^[40]

Elizabeth: And with that, Fred Korematsu was vindicated. Just as importantly, after 40 years of silence, the very internment itself was acknowledged in legal precedent as wrong. Three Supreme Court decisions in the 1940s denied the Nikkei their dignity. Korematsu was, really, just another in a line of Supreme Court Decisions about Japanese-Americans that really sucked. So Fred’s victory in 1983 was not just a victory for one quiet man who tried to evade internment to be with his high school sweetheart, who said yes to the ACLU because what other choice did he have?, who spent the rest of his life trying to provide for his family in the face of racial discrimination and limited employment opportunities because of a wrongful conviction, who was never really ready to talk about one of the worst moments of his life, not even with his children. Don’t get us wrong: it was a victory for Fred Korematsu. But it was also a victory for every interned Nisei and Issei. An acknowledgment that their internment was wrong, and the US government can and should be held accountable for their injustices.

Averill: And even if it took 40 years, I hope it’s some little comfort. Because the truth can come out. The convictions can be turned over. And all the crooks and conmen and racist bootlicking shitheads who are running their little empire of fear and war and cash-grabbing can be exposed. And if, for some reason, that time comes and those motherfuckers are still alive, we can deliver them their just desserts.

Oh, and hey – don’t forget to vote this November. xoxox

Elizabeth: Thank you for joining us today. As always, we invite you to follow us on BlueSky and Instagram at dig_history. If you have a comment or question or want to share some kind words with us, you can always email us at hello@digpodcast.org – we love listener mail! If you’re an educator, we’ve got a compendium of episodes you can use in the classroom – and free teaching resources, including full lesson plans! – on our website, digpodcast.org. You’ll also find full bibliographies, the scripts for all of our episodes, resources, and a link to our swag store at digpodcast.org. Thanks for listening.

BIBLIOGRAPHY

Oral History

https://www.jamsj.org/manabu

Lorraine K. Bannai, Enduring Conviction : Fred Korematsu and His Quest for Justice, (University of Washington Press, 2015)

Arthur Hanson, Manzanar Mosaic: Essays and Oral Histories on America’s First World War II Japanese American Concentration Camp (University of Colorado Press, 2023)

Brian Masaru Hayashi, Democratizing the Enemy: The Japanese American Internment, (Princeton University Press, 2010).

Masumi Izumi, The rise and fall of America’s concentration camp law : civil liberties debates from the internment to McCarthyism and the radical 1960s (Temple University Press, 2019)

Hayley Johnson and Sarah Simms, Beneath Heavy Pines in World War II Louisiana : The Japanese American Internment Experience at Camp Livingston (Bloomsbury, 2023).

Heidi Kathleen Kim, “When You Can’t Tell Your Friends from “the Japs”: Reading the Body in the

Korematsu Case,” Journal of Transnational American Studies, 4(1) 2011.

Mayya Komisarchik, Maya Sen, and Yamil R. Velez, “The Political Consequences of Ethnically Targeted Incarceration: Evidence from Japanese American Internment during World War II,” The Journal of Politics, volume 84, number 3, July 2022.

Ed. Charles McClain, The Mass Internment of Japanese Americans and the Quest for Legal Redress (Garland Publishing, 1994).

John E. Schmitz, Enemies among Us : The Relocation, Internment, and Repatriation of German, Italian, and Japanese Americans During the Second World War (University of Nebraska, 2021)