Review of “The Case for Loving: The Fight for Interracial Marriage” by Selina Alko

Case-for-Loving-by-Selina-Alko-on-BookDragon-670x800

As the Author explains in an Afterword to this book, she is white and her husband, fellow illustrator Sean Qualls, is African-American. They fell in love and were married in 2003. Alko writes:

“I must admit, it’s difficult to imagine that just decades ago couples just like us not only faced discrimination, but were told by their governments that their love was unlawful.”

But it was only in 1967 that the U.S. Supreme Court declared that anti-mixed marriage statutes were unconstitutional, in the landmark civil rights case Loving v. Virginia. Chief Justice Earl Warren, writing for the Court, declared that statutes preventing marriage solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

At the time of this decision, Virginia was one of sixteen states prohibiting and punishing marriages on the basis of racial classification. According to one Virginia statute, a “white person” was absolutely prohibited from marrying anyone other than another “white person.” The license-issuing official had to be satisfied that applicants’ statements as to their race were correct, and certificates of “racial composition” had to be kept by both state and local registrars.

CaseForLoving_1

This book tells the story of two Virginia residents, Mildred Jeter, part African-American and part Cherokee, and Richard Loving, a fair-skinned white boy. The two fell in love, but had to travel to Washington, D.C. to get married legally, which they did in 1958. Shortly thereafter, they returned to Virginia and took up residence.

CaseLoving3

They’d been married just a few weeks when, in the middle of the night in July, 1958, the county sheriff and two deputies, acting on an anonymous tip that the Lovings were in violation of the law, stormed into the couple’s bedroom. They informed the Lovings that their marriage license was no good in Virginia, and hauled Richard and the pregnant Mildred off to jail.

The couple eventually pleaded guilty to violating the Virginia law, which recognized citizens as “pure white” only if they could claim white lineage all the way back to 1684. The presiding judge ruled:

“Almighty God created the races white, white, black, yellow, malay and red, and he placed them on separate continents.” And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

The Lovings were convicted and sentenced to one year in jail; however, the trial judge suspended the sentence for 25 years on the condition that the Lovings leave Virginia. They moved to D.C., but missed their friends and family and the Virginia countryside. In 1964, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote in protest to Attorney General Robert F. Kennedy. Kennedy referred the matter to the American Civil Liberties Union.

CaseLoving2

The ACLU filed a motion on the Lovings’ behalf to vacate the judgment and set aside the sentence on the ground that the statute, the “Racial Integrity Act of 1924,” violated the Fourteenth Amendment. The Lovings also filed a class action in federal court to have the Virginia statutory scheme declared unconstitutional. This began a series of procedures and appeals that ultimately reached the Supreme Court.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving went on to have three children: Donald, Peggy and Sidney Loving. In the book, the authors aver that the Loving family, back in Virginia, lived “happily (and legally!) ever after.” But the truth is more tragic. Richard Loving died at age 41 in 1975, when a drunken driver struck their car. Mildred Loving lost her right eye in the same accident.

Mildred Loving died of pneumonia in 2008, in Milford, Virginia, at age 68. Her daughter Peggy Fortune said “I want [people] to remember her as being strong and brave yet humble — and believ[ing] in love.”

Mildred and Richard Loving in 1967

Mildred and Richard Loving in 1967

This book is a testament to that love, and also to the love between the Selina Alko and Sean Qualls. For the art work, they collaborated, using paint and collage in bold and beautiful colors. This is their first book together, but you can see in this book the influence of their previous (separate) books about mixed race relationships, such as Who Will I Be, Lord? by Vaunda Micheaux Nelson, Sean Qualls, Illustrator, and I’m Your Peanut Butter Big Brother by Selina Alko (both author and illustrator).

Evaluation: This story is told truthfully, but with the focus on the positive aspects of love, family, and the conviction that “Brand-new ideas, like equal rights for people of all colors, were replacing old, fearful ways of thinking.” One can only hope that faith continues to be justified.

Rating: 4.5/5

Published by Arthur A. Levine Books, an imprint of Scholastic Inc., 2015

July 11, 1941 – Robert Jackson Sworn in as Associate Justice of the U.S. Supreme Court

Robert Jackson, born in 1892, served as United States Solicitor General (1938-1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He is the only person in United States history to have held all three of those offices. He was also the chief United States prosecutor at the Nuremberg Trials. In addition, he is the last Supreme Court justice appointed who did not graduate from any law school.

Robert H. Jackson

Robert H. Jackson

Jackson began his career in the law at age 18, when he went to work as an apprentice in a Jamestown, New York two-attorney law office with his uncle who was a lawyer. Jackson did attend Albany Law School, in Albany, New York during 1911–12. Although Jackson completed the second year of the school’s two-year program, he was denied a law degree because he was under age twenty-one.

During the summer of 1912, Jackson returned to Jamestown, apprenticing again for the next year. He passed the New York bar examination in 1913 and joined a law practice in Jamestown, New York, later moving with his wife to Buffalo.

Jackson took a number of leadership roles in the bar, and in 1933 was elected chairman of the American Bar Association’s Conference of Bar Association Delegates (a predecessor to today’s ABA House of Delegates).

In 1934, he was appointed by Franklin Roosevelt to be general counsel for the Bureau of Internal Revenue in the Treasury Department and served as the government’s principal tax attorney. In 1936, Jackson became assistant Attorney General of the Tax Division in the Department of Justice and, less than two months later, he assumed the position of Assistant Attorney General for the Antitrust Division. In this position, he argued 10 cases before the Supreme Court.

Robert H. Jackson

Robert H. Jackson

In March, 1938, Jackson was confirmed by the Senate as the 24th Solicitor General of the United States. During his tenure as Solicitor General, Jackson argued 27 cases before the Court and lost 4.

Justice Louis Brandeis reportedly observed that Jackson was so good at the position he should serve as Solicitor General for life. (James M. Marsh, “Robert H. Jackson,” in THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993, ed. Clare Cushman (Washington, DC: Congressional Quarterly, 1993), at 408.)

In January 1940, Robert Jackson was appointed to be the Attorney General. He remained in that position until July 1941, when he was elevated to the Supreme Court on this day in history. In all, Justice Jackson served as a government attorney in five different capacities within the Department of Justice and argued before the Supreme Court on 37 separate occasions prior to joining the Court. (“From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan” by Susan Navarro Smelcer & Kenneth R. Thomas, CRS, June 23, 2010)

During Jackson’s tenure on the Court, President Harry Truman asked him to serve as the chief U.S. prosecutor at the Nuremburg Trials.

1946 photo of Chief U.S. prosecutor Robert H. Jackson seen during summation statements at the International War Crimes Tribunal at Nuremberg, Germany.   (AP Photo)

1946 photo of Chief U.S. prosecutor Robert H. Jackson seen during summation statements at the International War Crimes Tribunal at Nuremberg, Germany. (AP Photo)

Justice Jackson was known for a number of important opinions, including his concurring opinion in 1952’s Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579, 1952) (forbidding President Harry Truman’s seizure of steel mills during the Korean War to avert a strike), in which Jackson formulated a three-tier test for evaluating claims of presidential power. This remains one of the most widely cited opinions in Supreme Court history.

Jackson is also often quoted for his statement about the Supreme Court in Brown v. Allen (344 U.S. 443, 1953) that “We are not final because we are infallible, but we are infallible only because we are final.”

After serving over 13 years on the Court, Justice Jackson died suddenly of a heart attack on October 9, 1954.

June 28, 1978 – The U.S. Supreme Court Decides Regents of the Univ. of Cal. v. Bakke

On this day in history, the U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 265 upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court found that specific quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis School of Medicine, were impermissible.

Allan Bakke, a white applicant, was twice denied admission to the medical school even though his test scores were “significantly higher” than those of some minority applicants recently admitted.

Bakke first sued the University of California in a state court, alleging that the medical school’s admission policy violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause. The California Supreme Court agreed, finding that the quota system explicitly discriminated against racial groups and holding that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” The medical school, ordered to shut down its quota system, appealed to the U.S. Supreme Court, which reviewed the case in 1978.

In a 5-4 decision written by Justice Lewis Franklin Powell, the Court ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis.

Portrait of Lewis Franklin Powell, Jr.

Portrait of Lewis Franklin Powell, Jr.

California’s use of racial quotas in this case, however, did not meet those requirements because of the fact that it reserved 16 out of 100 spots solely for consideration of race. The Court found that the fact that blacks have historically had been discriminated against more than whites was irrelevant to this case, because racial quota systems, whether applied against whites or blacks, are always “odious to a free people whose institutions are founded upon the doctrine of equality.” Indeed, because the school’s quota was designed to redress past discrimination against racial minorities, the Court stated, it was intended to prefer “one group for no other reason other than race or ethnic origin.” Thus, the Court ruled that the school’s quota system “must be rejected … as racially invalid” under the Equal Protection Clause.

Justice Thurgood Marshall felt that affirmative action was important and more than justified. In a separate opinion, he wrote:

…today’s judgment ignores the fact that, for several hundred years, Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color, he never even made it into the pot. [my emphasis]”

He further opined:

In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.”

Supreme Court Justice Thurgood Marshall

Supreme Court Justice Thurgood Marshall

June 5, 1762 – Birth of Bushrod Washington, Associate Justice of the U.S. Supreme Court

Bushrod Washington, born on this day in history, was the son of John Augustine Washington, who was George Washington’s brother.

Bushrod Washington graduated from the College of William & Mary in 1778 and along with John Marshall studied law under George Wythe. (Wythe also taught and was a mentor to Thomas Jefferson, Henry Clay and other men who became American leaders.)

Bushrod Washington, engraving, 1891,  Library of Congress

Bushrod Washington, engraving, 1891,
Library of Congress

Washington practiced law from 1784 to 1798, also serving in the Virginia House of Delegates. On September 29, 1798, President John Adams appointed Washington to the seat on the U.S. Supreme Court vacated by James Wilson after John Marshall had declined the appointment. Washington was confirmed by the United States Senate on December 20, 1798, and became an associate justice on February 4, 1799, at the age of 36, continuing until his death in 1829.

Serving for thirty-one years, the Federalist Washington tended to support the opinions of Chief Justice John Marshall and Justice Joseph Story. Washington favored increasing the powers of the federal government, protecting private property rights and encouraging economic development. He voted so consistently with the great Chief Justice that they were considered conjoined “as a single judge.” He only voted against Marshall on three occasions. 

Bushrod Washington

Bushrod Washington


 
As George Washington’s favorite nephew, Bushrod inherited Mount Vernon after Martha Washington’s death, and became executor of his uncle’s estate, including President Washington’s public and private papers. 

When Bushrod and his wife moved to Mount Vernon, he brought his slaves, but even so was unable to support the upkeep of the plantation’s mansion on the proceeds from the property and his Supreme Court salary. He sold many of his slaves to gain working capital to support the main house and property. (Somewhat in keeping with the tendency of early Americans to say one thing and do another, Washington was among the founders of the American Colonization Society (ACS), which promoted repatriation to Africa of blacks.)

Bushrod died in Philadelphia, Pennsylvania, on November 26, 1829, while riding circuit. His wife died two days later while transporting his body for burial. They were both interred at Mount Vernon.

May 17, 1954 – Brown v. Board of Education & The Wrangling Behind the Decision: Review of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” by Noah Feldman

Felix Frankfurter Professor of Law at Harvard, Noah Feldman, has given us a thoroughly researched, well-written, solid analysis of the inner workings of the U.S. Supreme Court from the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the “Scorpions” of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very Jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court-packing scheme; how testimony by Robert H. Jackson, a Roosevelt confidant and future Supreme Court appointee (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.”

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Published by Grand Central Publishing, 2011

April 25, 1910 – Charles Evans Hughes Nominated to the Supreme Court

Charles Evans Hughes, Sr. (1862 – 1948) was an American statesman, lawyer, and Republican politician from New York. He served as Governor of New York, Associate Justice of the Supreme Court of the United States, United States Secretary of State, a judge on the Court of International Justice, and the 11th Chief Justice of the United States (1930–1941).

Hughes graduated third in his class from Brown University at the age of 19, having been elected to Phi Beta Kappa in his junior year. He entered Columbia Law School in 1882, where he graduated in 1884 with highest honors. While studying law, he taught at Delaware Academy. He is said to have had a photographic memory and a great intellect.

Charles Evans Hughes, 1908

Charles Evans Hughes, 1908

Early in his career, Hughes lectured at Cornell Law School, New York University Law School, and served as a special assistant to the U.S. Attorney General. Hughes was the Governor of New York from 1907 to 1910, defeating William Randolph Hearst in the 1906 election to gain the position.

In 1908, Hughes was offered the vice-presidential nomination by William Howard Taft, but he declined it to run again for Governor.

As the Governor, Hughes produced important reform legislation, helping to counter political corruption, extending the state’s regulatory authority, and expanding governmental police and welfare functions.

Gubernatorial portrait of Charles Evans Hughes

Gubernatorial portrait of Charles Evans Hughes

On this day in history, April 25, 1910, President William H. Taft nominated Hughes for Associate Justice of the Supreme Court to fill the vacancy left by the death of Justice David J. Brewer. The Senate confirmed the nomination on May 2, 1910, and Hughes served as associate justice of the Supreme Court from 1910 to 1916.

In 1916, Hughes resigned form the Court to accept the Republican nomination as its presidential candidate, to run against incumbent Woodrow Wilson.

After Hughes was defeated by Wilson, he returned to the practice of law. In 1921, he was appointed Secretary of State by President Warren G. Harding.

After leaving the State Department, he again rejoined his old partners at the Hughes law firm, and became one of the nation’s most sought-after advocates. From 1925 to 1930, for example, Hughes argued over 50 times before the U.S. Supreme Court. From 1926 to 1930, Hughes also served as a member of the Permanent Court of Arbitration and as a judge of the Permanent Court of International Justice in The Hague, Netherlands from 1928 to 1930.

Herbert Hoover, who had appointed Hughes’s son as Solicitor General in 1929, appointed Hughes Chief Justice of the United States on February 3, 1930. Hughes was confirmed by the United States Senate on February 13, 1930, and served in this capacity until 1941. Hughes replaced former President William Howard Taft, a fellow Republican who had also lost a presidential election to Woodrow Wilson (in 1912) and who, in 1910, had appointed Hughes to his first tenure on the Supreme Court.

Portrait of Hughes as Chief Justice.

Portrait of Hughes as Chief Justice.

Upon his return to the Supreme Court, Hughes took progressive stances, upholding legislation protecting civil rights and civil liberties, and writing the opinion for the Court in Near v. Minnesota (283 U.S. 697, 1931), a landmark decision that recognized the freedom of the press by rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence.

Hughes was a centrist, who, however, was often aligned with the court’s three liberal Justices — Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo — in finding some New Deal measures constitutional.

But President Franklin Roosevelt was growing increasingly unhappy with the Court, which struck down some of his efforts to push through several New Deal measures intended to bolster economic recovery during the Great Depression. He avoided a confrontation in the election year of 1936. After he won that election, however, he proceeded to introduce, on February 5, 1937 his so-called “Court packing” plan. In essence, he sought to counter the opposition to his programs by expanding the number of justices, in order to create a pro-New Deal majority on the bench. His Judiciary Reorganization Bill of 1937 would have granted the President power to appoint an additional justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.

McClure's Magazine

McClure’s Magazine

The plan came under heavy attack, with Hughes working behind the scenes to help defeat it by rushing important New Deal legislation through the court and ensuring that the court’s majority would uphold their constitutionality. Perhaps the most important such case was West Coast Hotel v. Parrish (300 U.S. 379, 1937), in which a divided Court, with Hughes writing for the 5-4 majority, upheld the constitutionality of Washington state’s minimum wage law, and by implication, much more of the New Deal.

FDR’s court-packing legislation was presented to Congress on February 5, 1937. The West Coast Hotel ruling came several weeks after the legislation was presented to Congress, with Associate Justice Owen Roberts joining the more liberal wing of the bench. Justice Roberts had previously ruled against most New Deal legislation. Thus his switch here was widely seen by contemporaries as an effort to maintain the Court’s judicial independence by eliminating Roosevelt’s rationale for judicial reorganization. His move came to be known as “the switch in time that saved nine,” but Hughes and Roberts both later claimed that the Chief Justice had already convinced Roberts to change his method of voting months before Roosevelt announced his court-packing plan.

Ultimately, Roosevelt’s proposed court packing plan failed. The entire episode created a public relations nightmare for Roosevelt and also sapped his influence over Congress.

Los Angeles Times

Los Angeles Times

Hughes wrote 199 majority opinions during his time as Chief Justice, from 1930 to 1941. He died on August 27, 1948, at the age of 86.

April 19, 1984 – District Court Reverses Conviction of Korematsu

When the Japanese bombed Pearl Harbor on December 7, 1941, fear and prejudice towards the Japanese reached a fever pitch. These attitudes extended to both citizens and non-citizens of Japanese descent living in the United States.

At the time, approximately 120,000 people of Japanese descent lived on the West Coast, and about 70,000 of these were American citizens. There was never at that time, however, nor thereafter, any proven case of espionage or sabotage on the part of Japanese or Japanese-Americans in the United States.

Nonetheless, in February 1942, General John DeWitt, the commanding officer of the Western Defense Command, recommended that “Japanese and other subversive persons” be evacuated from the Pacific Coast. He claimed:

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. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan in a war against the nation of their parents.”

Children at the Weill public school in San Francisco pledge allegiance to the American flag in April 1942, prior to the internment of Japanese Americans.

Children at the Weill public school in San Francisco pledge allegiance to the American flag in April 1942, prior to the internment of Japanese Americans.

He also said that there was “no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation when the final test of loyalty comes.”

posted_japanese_american_exclusion_order

President Franklin D. Roosevelt (known himself for not having enlightened attitudes about the Japanese) acted on this recommendation by signing Executive Order 9066. This authorized the Secretary of War or any designated commander, at their sole discretion, to limit and even prohibit some people from being in areas that were deemed critical to national defense and potentially vulnerable to espionage. The ensuing restrictions on people of Japanese origin included forced removal to assembly and relocation centers much farther inland. Ten relocation camps scattered across the West were built to accommodate the Japanese that included the group of 70,000 American citizens.

Map of forced internment camp locations — used for the internment of Japanese American citizens during World War II.

Map of forced internment camp locations — used for the internment of Japanese American citizens during World War II.

Soon after the order was enacted, Congress sanctioned the executive order by passing a law that imposed penalties for those who violated the restrictions pursuant to the order.

Fred Korematsu was an American-born citizen of Japanese descent who grew up in Oakland, California. When Japanese internment began in California, Korematsu evaded the order and moved to a nearby town so he could remain near his (non-Japanese) girlfriend. He was later arrested and convicted of violating Exclusion Order No. 34 issued by General DeWitt, which barred all persons of Japanese descent from the “military area” of San Leandro, California. There was no question at the time of conviction that Korematsu had been loyal to the United States and he was not a threat to the war effort.

Fred Korematsu

Fred Korematsu

Korematsu challenged his conviction but the federal appeals court ruled in favor of the United States, and Korematsu’s appeal brought the issue before the U.S. Supreme Court in Korematsu v. United States (323 U.S. 214, 1944).

On December 18, 1944 the Supreme Court decided the case, with a 6-3 majority on the Court upholding Korematsu’s conviction.

Justice Hugo Black, writing for the majority, sided with the government and held that the need to protect against espionage outweighed Korematsu’s rights. He stated that “we cannot reject as unfounded the judgment of the military authorities.” Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”

Justice Hugo Black

Justice Hugo Black

Justice Robert Jackson dissented, expressing his view that the military ruling had no place in law under the Constitution. Korematsu’s only crime, he wrote, was “merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” Nevertheless, he opined that “The military reasonableness of these orders can only be determined by military superiors. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task.”

apanese-Americans in California being sent to internment camps in 1942.

Justice Owen Roberts disagreed, writing “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.” He also objected that a relocation center “was a euphemism for prison,” and that the internment of the Japanese was based upon “the disinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices.”

newspaper_headlines_of_japanese_relocation_-_nara_-_195535

Justice Frank Murphy agreed with Roberts in his dissent, finding that “this exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”

In 1984, Korematsu challenged the earlier decision through a writ of coram nobis in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). (A writ of coram nobis is the name of a legal order allowing a court to reopen and correct its judgment upon discovery of a substantial error not appearing in the records of the original judgement’s proceedings which, if known at the time of judgment, would have prevented the judgment from being pronounced.)

In this later case, Korematsu provided evidence establishing that the Justice Department had suppressed information from governmental sources that contradicted the Army’s assertion that the Japanese American community represented a national defense risk. The District Court granted his writ and overturned Korematsu’s original conviction. However, the District Court emphasized that in issuing this decision, it had the power to correct only errors of fact, not errors of law. The essential holding of the 1944 Korematsu decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched.

The U.S. Government officially apologized for the internment in the 1980s and paid reparations totaling $1.2 billion, as well as an additional $400 million in benefits signed into law by George H. W. Bush in 1992. In January of 1998, President Bill Clinton named Fred Korematsu a recipient of the Presidential Medal of Freedom.

korematsuclinton

Korematsu has never been officially overturned, and as Dean M. Hashimoto in “The Legacy of Korematsu v. United States: A Dangerous Narrative Retold” notes: “Popular wisdom has it that Korematsu has silently passed away as legal precedent.” But in fact, as he points out, “The Korematsu case has been applied in a traditional manner under stare decisis, primarily from the 1940s through the 1960s, in cases involving postwar regulation, immigration law, and national security law.” From the 1980’s onward, however, as he shows, treatment of the case changed:

Justices assign negative persuasive weight to the result reached in Korematsu. This approach recognizes that Korematsu is now publicly perceived to have been decided incorrectly. By placing Korematsu in its historical context, the Court therefore is able to use it in a way substantially different from ordinary stare decisis.”

As he observes, “The Court’s reliance on evolving interpretive methodologies has mirrored changing public sentiments about the Japanese internment.”