Gordon Hirabayashi, Min Yasui and Fred Korematsu in 1983.
In our amicus brief opposing the Muslim Ban, the children of Fred Korematsu, Gordon Hirabayashi and Minoru Yasui asked the court to consider our fathers’ World War II cases, and to take the opportunity to repudiate the government’s racist policy against Japanese Americans at the level of the Supreme Court as they have been overturned in the lower federal courts.
Thanks to Justice Sonia Sotomayor, the court did repudiate Korematsu … but not Hirabayashi and Yasui. And the majority upheld the Muslim Ban.
Chief Justice Roberts stated in the majority opinion: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -- to be clear -- 'has no place in law under the Constitution.'”
That statement would be cause for celebration had the Court heeded its own assertion. But it did not. In upholding the Muslim Ban, the majority abdicated its responsibility, as it did in Korematsu, Hirabayashi and Yasui to strictly review the presidential order. Instead, it took at face value the government’s assertion that the travel ban is necessary for the protection of the country. In spite of copious evidence that it was based on anti-Muslim bias, the Court deferred to the President, just as it did during World War II, when it accepted without question the government’s claim that the Japanese American incarceration was based on military necessity.
As Justice Sotomayor noted in her dissent:
"By blindly accepting the Government's misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one gravely wrong decision with another,"
Our Stop Repeating History campaign is not about personal recognition, it is about our most fundamental democratic principle of equal justice under the law. So the High Court’s repudiation rings hollow. If Korematsu “has no place in law under the Constitution,” neither does the Trump Muslim Ban.
Only Justice Sotomayor truly repudiated Korematsu, and by extension Hirabayashi and Yasui. Her dissent deserves praise for its clear-sighted refusal to approve of a government policy that was from the start, and through three iterations, infected with bigotry and intolerance.
We will continue the struggle against discriminatory and xenophobic policies that separate families, demonize and criminalize people of color, with a new Congress to be elected this year; a new administration in two or six years from now; and eventually, a new Supreme Court, which will re-balance itself in coming decades.
We will pass on the struggle to those who come after us just as we carry on from those who came before us, like Fred Korematsu, a quiet and unpretentious man whose case has come to represent the wartime Japanese American experience; Gordon Hirabayashi, a scholar who dedicated his life to international understanding in the Middle East and in Canada; and Minoru Yasui, a lawyer and community leader who dedicated his life to defending the civil and human rights of all people, and never gave up the fight for justice for all.