On a recent episode of Amicus, Dahlia Lithwick was joined by Judge Edward M. Chen and Don Tamaki to discuss the shameful legacy of Korematsu v. United States, in which the Supreme Court held that the internment of Japanese Americans during World War II was justified. Chen and Tamaki were members of the legal team that succeeded in clearing Fred Korematsu’s name in 1983, almost 40 years after his conviction. They also discussed what lessons we can draw from the case about reparations and forgiveness today. A small portion of their conversation, which has been edited and condensed for clarity, appears below.
Dahlia Lithwick: I want to ask you both whether there’s a way to think about everything we’re talking about with Korematsu and this larger conversation we’re having right now in this country about reconciliation, about the possibility of getting back to truth, about the possibility of making amends and reparations and finding our way back to shared values. What do we learn from what you’ve learned about Korematsu, reparations, forgiveness, and working our way back?
Don Tamaki: The lessons of the Japanese American incarceration, of course, focus on people losing their freedom and their property. But ultimately, I think what we’re talking about is what is this culture, and you mentioned racism being a part of the founding of American history. And we’re really talking about a culture that normalizes behavior. One of the great contributions of the Black Lives Matter movement is to shine a light on not just police brutality but systemic racism.
And with one police shooting after another of young black men, it would barely evoke a shrug until the George Floyd killing. Why? Because it was normal. And again, the Korematsu case, when that happened, rounding up of these Americans was completely normal. That was so logical and so expected that by the time the case came up to the U.S. Supreme Court, of course you have to uphold it. That was the pressure of the day.
And so, Ed talked about how this culture is accomplished. I think there are three parts to this playbook, and it’s a playbook that tyrants have used since time immemorial. One, appeals to prejudice, two, fearmonger and scapegoat, and three, trafficking conspiracy theories, falsehoods, and alternative facts. And when you combine all of those three things, where facts don’t matter, where the press is the enemy of the people, a culture that says Mexicans are drug dealers and rapists. Muslims are terrorists. Chinese bring disease. Any number of these things, once they become normalized and they grip the culture, then almost anything is possible. And we can look to Germany in the 1930s. We can look to contemporary countries now that are experiencing what’s called populism, which is really authoritarianism and the rise of dictatorships. And the dangerous thing is we’re seeing these elements of this thing infecting our own democracy. And it’s happened in the past before, but never on this scale.
Joseph McCarthy in the ’50s was an example who understood demagoguery very well, but we’ve never had it at a presidential level. And what is going on now with not just certain people but large portions of the population, including our representatives, engaging in challenges to the election process where literally no facts exist to do that and not understanding the danger in the long run is very frightening. And I think it’s on us really to raise that issue.
Judge Chen, I wonder if you have a final, oh, maybe somewhat more optimistic or sanguine take— although, I’m with Don, I find us in a worrying moment—but just on the possibility of reconciliation correcting the record justice.
Edward M. Chen: There are two things that come to mind. First, one of the lessons I think we’ve learned from Korematsu is that where there’s an injustice, we cannot afford to forget it. And the fact that people continue to labor to bring about justice for 40 years after what happened in the ’40s to Japanese Americans, really, this is an example where it’s made a difference. That consciousness never died thanks to the work of Don and many others in the movement.
And the fact that the court in Trump v. Hawaii in 2018 had to deal with Korematsu tells you that that tale was not over, that ghost was still there, that injustice still had to be addressed. And I think we’ve learned throughout history, both here in this country and elsewhere the value, for instance, of truth and reconciliation commissions and everything else. We cannot let an injustice just go away and be forgotten. We need to be reminded of it so that we can do better.
Second, and maybe this is coming from a partisan as a judge, but I have a deep and abiding faith in the courts, notwithstanding their imperfections, notwithstanding the many instances of terrible decisions that we can think about, whether it’s Dred Scott, Plessy, or Korematsu. It is still the institution where at least as an ideal we’re bound by the rule of law, that law matters more than who the people are before it. It’s to be applied with equal justice. And that we put a premium on truth. And even though the court failed, I think, in the Korematsu case, that was not the ideal. The ideal remains that we seek the truth.
And I think that’s a model for society generally, where we act on accuracy and truth, where we abide by the notion that we’re a nation of laws and not people, or that the laws are to be applied with equal application, equal justice. I think they still represent the beacon of hope for our society. I still have faith. I have to have faith because that’s my job, but I still have faith in the courts, because what I see day in, day out, what I do, what my colleagues do with an earnest effort to go about to find the truth and to do justice.
Now, it is true, there’s an ongoing debate that’s been going on for hundreds of years and will probably continue about the role of the courts, how much they should play in terms of oversight and checking the other branches, what the scope of review should be. Are there times when the courts should defer in certain situations? And those are fair debates. And again, that debate between Chief Justice John Roberts and Justice Sonia Sotomayor is a good illustration of that. And I think that discussion needs to go on. We need to be conscious of it, and we need to argue about it. And it is so critical, so critical to our society. But I continue to have faith in our courts as an institution, and that can sort of show us the right path in terms of how we can go about and become a fairer and more just society.
Update, Jan. 4, 2021: The introduction to this post has been updated to include more background on the Korematsu case.
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