|Japanese await train to detention camps - 1942|
The approval of the internment of Japanese Americans ranks with Dred Scott as the worst decision of the U.S. Supreme Court, Justice Antonin Scalia has said. Yet the court has never formally overruled the 1944 Korematsu decision. Despite being urged to do so many times in the past seventy years. It has another chance, thanks to the perseverance of Peter Irons, activist lawyer and constitutional law professor from the University of San Diego. The chance comes in a challenge by journalists who find unconstitutionally vague and dangerous Congress's 2011 affirmation of the post September 11, 2011 Authorization for the Use of Military Force which has been relied upon for the war in Afghanistan and detention without charge or trial at Guantanamo Bay. Adam Liptak reports:
A discredited ruling that still stands, Technically
In urging the Supreme Court to hear their case, Hedges v. Obama, No. 13-758, the plaintiffs challenging the law asked the justices to consider whether Korematsu should be overruled.
The new case is hardly an ideal vehicle. The federal appeals court in New York dismissed it, saying that the plaintiffs had not suffered the sort of injury that gave them standing to sue, and it said nothing about Korematsu. Solicitor GeneralDonald B. Verrilli Jr. will presumably oppose a Supreme Court review on the grounds that the appeals court’s ruling on standing was correct.
But Peter H. Irons, a lawyer who discovered evidence of government misconduct in the Korematsu case and later helped its namesake, Fred Korematsu, wipe out his conviction, for remaining in a restricted military area, said the new case represents an opportunity.
He and other lawyers recently wrote to Mr. Verrilli to ask him to join the plaintiffs in asking that Korematsu be overruled. They reminded Mr. Verrilli that his predecessor, Acting Solicitor General Neal Kumar Katyal, had in 2011 issued a“confession of error” for the actions of government lawyers in the Korematsu case. Those lawyers, over the protests of underlings, had twisted and withheld evidence from the Supreme Court.
Mr. Katyal spoke for the executive branch. Congress has also addressed the matter.
In 1982, a congressional commission concluded that the internment of Japanese Americans was “a grave injustice” animated by “race prejudice, war hysteria and a failure of political leadership.” It added that “the decision in Korematsu lies overruled in the court of history.”
But not in the court that issued it. “The Supreme Court is the last branch of government to formally apologize and renounce this,” Mr. Irons said in an interview.
He said the Hedges case could provide an opportunity even if the court declined to hear it, as it is not unusual for justices to append statements to orders denying review. “It would be a very symbolic gesture on the court’s part, especially if it is joined by a majority of the justices,” Mr. Irons said of such a statement.