The young man and his girlfriend were strolling down a street in San Leandro, California, when the police stopped them. It was May 30, 1942, and police asked the man why he hadn’t complied with U.S. military orders that excluded Japanese Americans from the West Coast. The man, who gave his name as Clyde Sarah, insisted to police that he was Hawaiian, not Japanese.
Unconvinced, the police detained “Clyde Sarah”—who was actually Fred Toyosaburo Korematsu. He had refused to obey the order that forced Japanese Americans into incarceration camps, and changed his name to try to avoid detection. That day, his defiance got him arrested.
Fred Korematsu would go on to fight back, arguing that it was unconstitutional to detain a group of people in the name of military necessity. His case would go all the way to the U.S. Supreme Court, where the decision bearing his name would become one of the high court’s most notorious rulings. And Korematsu would make history as a Japanese American civil rights icon, before his death at age 86 in 2005.
Here's how Korematsu fought back, and why his case was so controversial.
Born in Oakland in 1919, Korematsu had what might be called an all-American childhood. But he was also subjected to the anti-Japanese sentiment and discrimination common at the time in California and other states. Asian immigrants could not naturalize and gain American citizenship. And though California had the nation’s largest Asian American population, it was home to intense anti-Asian and anti-Japanese sentiment. In the words of the government commission that later investigated Japanese incarceration, Japanese Americans in California “were effectively barred from participation in social and economic affairs.”
Korematsu felt this firsthand as the threat of a second world war began to loom over the U.S. in the late 1930s and early 1940s. When he tried to volunteer to serve with the U.S. Navy, his draft board declared him unfit for service; though the official reason was ulcers, he believed it was due to discrimination. Instead, he enrolled in welding school and got a job on the Oakland docks. But after the Japanese military attacked the U.S. at Pearl Harbor in December 1941, his union kicked out all of its Japanese members.
Korematsu’s parents, both Japanese immigrants, worked hard as owner-operators of a flower nursery in East Oakland. They were devastated by the attack, which plunged the U.S. into war with Japan. “They knew that the worst [was] gonna come to them,” said Korematsu in a 1996 oral history. “They realized all that work they did, all those years, all that hard work, was just about to disappear.”
On February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066, authorizing the War Department to create military exclusion zones—geographic areas from which they could block or expel any person. It gave the government the green light to move ahead with the detention of more than 100,000 Japanese and Japanese American people in the name of military necessity.
Declared “enemy aliens” by their government, these Japanese Americans closed up their businesses and homes and headed to detention centers that eventually led them to incarceration camps.
But Korematsu had plans of his own. His girlfriend, Ida Boitano, was Italian American; if Korematsu stayed with his parents and brothers and reported to a detention center, the couple knew they’d be separated. So they decided to flee from the West Coast.
Korematsu even arranged to have plastic surgery to change his facial features in hopes that when they fled, they’d be less likely to be apprehended. In March 1942, he paid a doctor a hundred dollars for surgery on his eyelids and nose. When the Korematsu family reported to Tanforan Assembly Center to be “evacuated” that month, Fred was not with them.
He had told his parents he was in Nevada. But Korematsu really was still in Oakland, working odd jobs, spending time with Boitano, and saving up money for the escape. In late May, three weeks after the order went into effect, the couple was walking down the street of nearby San Leandro when Korematsu was apprehended by police. Though he gave a fake name, false identity documents, and denied he was Japanese American, he was accused of spying for Japan and detained.
An unexpected visitor
As Korematsu sat in jail in San Francisco, he received a visitor he didn’t know: Ernest Besig, the head of the American Civil Liberties Union’s Northern California chapter. Besig had read about Korematsu’s arrest in the local paper and wanted to know if the young man was willing to become a test case of the executive order’s constitutionality.
Korematsu agreed, and the plan was soon set into motion. A federal court convicted him of defying military orders and sentenced him to probation in 1942. Though Besig posted bail, military police seized Korematsu at the end of his trial. They sent him first to the Tanforan facility, where he reunited with his family, and then to an incarceration camp in Topaz, Utah.
Meanwhile, Boitano wrote to Besig and told him she agreed that Korematsu didn’t commit any crime, but that she did not want him to contact her. “You see,” she wrote, “I happen to be Italian and this is war, so we must both be careful.” Not only were Italy and Japan allies in the war, but the U.S. also targeted and even detained Italian Americans during the war. Korematsu and Boitano never saw each other again.
Korematsu faced criticism from some incarcerated with him for bucking orders and potentially tainting the public’s view of Japanese Americans even further. His cause was divisive even within the ACLU; the national organization repeatedly asked Besig to drop the case. But both men were unapologetic as they continued to press the case.
A landmark case
After a California appeals court affirmed the conviction, ACLU attorneys argued Korematsu v. U.S. in front of the U.S. Supreme Court in October 1944. That day, the court also heard arguments in the case of another Topaz internee, Mitsuye Endo, who had sued the U.S. for unlawfully detaining her under habeas corpus law.
The court announced its opinion in both cases on December 18, 1944. Endo won hers—and the day before, to get ahead of the decision, the War Department revoked its own order and announced that as of January 2, all loyal, non-dangerous prisoners would be free to return home.
But Korematsu did not prevail. In the majority opinion, Justice Hugo Black compared the executive order and military exclusion zone to a curfew and argued that the order was based not on “antagonism to those of Japanese origin,” but a military imperative due to the existence of “disloyal members of that population.” In his dissent, Justice Frank Murphy called it a “legalization of racism...utterly revolting among a free people.”
Why did Endo win her case while Korematsu did not? It came down to the scope of each case. Unlike Korematsu, Endo had complied with the orders, and the court deemed that it was illegal to detain a loyal citizen who had not been found dangerous to the U.S. In Korematsu’s case, however, the court found that it was constitutionally acceptable to restrict people the military considered a threat—including ones who, like Korematsu, had broken the law.
After the war, Korematsu tried to leave the events behind him. He moved to Salt Lake City, started a family, and kept his head down, though he still faced anti-Asian sentiment and had trouble finding employment due to his criminal conviction. His daughter would later recall that she didn’t learn about Korematsu’s resistance until she was in high school and a friend there wrote a report on the Supreme Court case.
Decades later, a revelation bearing on his case moved Korematsu to speak out once more. In the 1980s, legal historian Peter Irons came across evidence that the Department of Justice had suppressed information that showed Japanese Americans did not present a threat to the United States. Korematsu agreed to return to court to again challenge his conviction.
“I thought that this decision was wrong and I still feel that way,” he told the U.S. District Court judge hearing his reopened case in 1983. “As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or hearing.” That judge vacated Korematsu’s criminal conviction, clearing his federal record. But she noted that her court did not have the ability to rule on legal errors by the Supreme Court.
Korematsu’s record of civil rights activism was recognized in 1998 when he was awarded the Presidential Medal of Freedom. He continued to speak in defense of civil liberties, including on behalf of those detained at Guantanamo Bay, Cuba, after the 9/11 attacks. But at his death in 2005, the Supreme Court ruling on his conviction still stood.
It would take another question of national security for the high court to formally repudiate the Korematsu decision that had been on the books for nearly three quarters of a century. In 2018, the Supreme Court turned its back on the precedent—in defense of President Donald Trump’s ban on incoming travel from citizens of predominantly Muslim nations.
In his majority opinion, Supreme Court Chief Justice John Roberts wrote that “Korematsu was gravely wrong the day it was decided” and “has been overruled in the court of history.” Yet legal scholars have noted that the court stopped short of formally overruling the decision.
Despite the significance of his case, Korematsu was humble about his role in history. “I didn’t feel that I did anything wrong,” he said in the 1996 oral history. “If anybody did wrong, it was the law.”