Bad laws in our nation ruled by law: Korematsu (interning Japanese Americans)

This is the third of Casey Sullivan’s 13 worst Supreme Court decisions:

3. Korematsu v. United States (1944): Here, the Supreme Court upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens. In a cruel and ironic twist, this was also the first time the Court applied strict scrutiny to racial discrimination by the U.S. government, belying the idea that strict scrutiny is “strict in theory, fatal in fact.”

These Japanese-American citizens were interned in concentration camps built in fairly inaccessible parts of the country. George Takei, who as a child was interned with his parents, has written evocatively about them.

Concentration camps built in the desert, for the purpose of interning people who have not been tried and convicted of any crime deserving of imprisonment…remind you of anything?

Here’s more on Korematsu. One sentence sticks out. I’ve bolded the phrase that sticks out farthest:

Congress reassessed the internment in the early 1980s, and in 1982 and 1983 issued a report called Personal Justice Denied which determined that military considerations had not required the removal of Japanese Americans and concluded that the Korematsu decision had been €œoverruled in the court of history.

“Overruled in the court of history,” but not in the American court of justice.

As I read through these bad laws and lousy Supreme Court decisions, this is what I’ve noticed: people who have suffered under these bad laws can, like Korematsu himself, spend a lifetime appealing to the court itself, but basically have to wait it out until the “court of history”–whatever that is and whenever that comes down–makes its decision.


UPDATE 5/16/2017. An excellent essay from ThinkProgress on Korematsu–which was cited by a 9th Circuit judge yesterday, a judge who is one of the panel hearing the appellate argument on Trump’s Muslim ban executive order.

As ThinkProgress says, it can’t be good for the administration when a judge cites Korematsu in his questioning.


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