May is Asian American, Native Hawaiian, and Pacific Islander Heritage Month. Therefore, we will highlight an important intersection of legal history of significant impact to the Japanese-American community: the Japanese internment camps, the Korematsu v. US Supreme Court case, and its subsequent legal treatment.
On February 19, 1942 President Franklin Roosevelt issued Executive Order 9066, authorizing the removal of Japanese Americans from the west coast of the United States, which resulted in their relocation to internment camps.
The legality of this order and removal was challenged by Fred Korematsu, and the related curfew challenged by Minoru Yasui of Oregon and Gordon Hirabayashi. In all three cases the Supreme Court upheld the right of the government to exclude Japanese Americans and impose a curfew on them.
In subsequent proceedings in all three cases in the 1980s, lawyers for the defendants overturned the convictions in the federal district courts and Ninth Circuit. However, Korematsu has never been explicitly overturned in the Supreme Court, although it has been rejected by that court.
A recent episode of OVERDUE: Weeding Out Oppression in Libraries titled “Alternative Facts & Libraries” focused on the history of these cases, specifically the disinformation and lies behind the executive order. In it they talk with the filmmaker who created “Alternative Facts: The Lies of Executive Order 9066,” Jon Osaki, and one of the lawyers involved in the 1980s proceedings to overturn the conviction of Fred Korematsu, Lorraine Bannai. They also interview Hawai’i State Law Librarian Jenny Silbiger.
A lot is covered in the film and podcast. One highlight is that an archivist helping collect materials for the Congressional Commission on Wartime Relocation and Internment of Civilians was instrumental in preserving evidence of intentional misinformation presented by some government actors in the original creation and defense of Executive Order 9066. Another is Lorraine’s note in the podcast that while Chief Justice John Roberts repudiated Korematsu in Trump v. Hawaii, it is unclear what legal force, if any, that has. A warning for legal researchers to always check the exact language and context when looking at the current precedential value of cases.
If you are interested in finding the text of executive orders, you can use resources like HeinOnline, or govinfo.gov. If you are interested in finding the text of case decisions, you can use resources like Fastcase, Google Scholar, case.law, or LexisNexis or Westlaw at your local law library.