Densho Digital Archive
Steven Okazaki Collection
Title: Peter Irons Interview
Narrator: Peter Irons
Location: San Francisco, California
Date: November 11, 1983
Densho ID: denshovh-ipeter-03-0012

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Q: Can you tell us a little bit about the Supreme Court decisions and some of the government arguments that were presented as well as dissenters? There were some people...

PI: Okay. The Supreme Court issued rulings in four cases dealing with the evacuation and internment. The first two in 1943, the curfew violations of Gordon Hirabayashi and Min Yasui. In those cases the Supreme Court opinions were unanimous. The argument made by the government was basically that there was evidence the Japanese Americans or a significant number of them were disloyal. There was a danger that they would commit espionage and sabotage. The lawyers arguing against the government had no basis on which to challenge those claims, so the Supreme Court basically decided the case on the government's disloyalty and espionage charges, which, of course, they knew were untrue. However, there was a, at that time -- and this of course was when the war was still hanging in the balance -- members of the Supreme Court were very reluctant to break ranks in these cases. That is, even one dissenting opinion would have opened the way for questioning of the internment and its validity. There was a member, Justice Murphy, Frank Murphy, who in fact had written a dissenting opinion in the Hirabayashi case, he was argued out of it. Justice Felix Frankfurter said to him, "If you dissent in this case, you'll be playing into the hands of the enemy." Murphy bowed to that pressure, withdrew his dissenting opinion, and the Court unanimously upheld Hirabayashi and Yasui's convictions. Eighteen months later when Fred Korematsu's case came before the court, along with the, a case involving a habeus corpus petition by a woman who had challenged her internment after she'd gone to the camps, a woman the government had concluded was loyal, there was more of a willingness at the end of 1944, when it seemed certain that the Allies would eventually win the war, for members of the Court to take a second look, have second thoughts about the internment, particularly because the Korematsu case directly challenged the exclusion itself and not just the curfew that proceeded it,

In this case, when the Court met after the arguments which were essentially the same arguments that had been presented a year earlier, the discussion and debate within the Court's secret conference room was much more wide open. Several members of the Court expressed grave reservations about what they had done in the Hirabayashi case. One Justice said, "It was the most agonizing decision I ever had to make." At the conference, four members of the Court, which is not a majority but a very solid minority, voted to reverse Korematsu's conviction. One of those was Justice William Douglas. Douglas, of course, is known as a great civil libertarian. But in this case, his dissent was based on a reading of the facts of the case when Korematsu had been ordered to report, when the orders allowed him to leave the area, rather than remain in the area, Douglas felt that he had been caught in a bind between two conflicting orders. One which said, "You can't stay," the other said, "You can't leave." In that situation, Douglas felt Korematsu could not be convicted of violating an order which left him no alternative. But again, Douglas was talked out of his dissent by Hugo Black who wrote the majority opinion, also a great civil libertarian by reputation. There were, however, three justices who remained firm in their dissents for different grounds. One felt that military orders which discriminated on the basis of race were inherently unconstitutional. Another, Justice Murphy this time, who revised his original dissenting opinion from the Hirabayashi case, basically brought it up to date, said, "General DeWitt's report was so full of contradictions, so full of unsubstantiated charges, that the Court really has not had an opportunity to look at the real facts." Now one thing that was very important in the decision, in the Korematsu case, is that two of the government's lawyers, before the case was argued, had prepared a footnote, a very crucial footnote to the case which explicitly repudiated General DeWitt's report, which said in fact that the Justice Department had evidence about loyalty and espionage that contradicted DeWitt. If that footnote had stayed in the government's brief, there's no question in my mind that the Court would not have upheld his conviction. It would have been a confession of error by the government. The footnote, however, was taken out. Assistant Secretary of War McCloy, when he saw the first printed version of the government's brief, objected strenuously, he said, "We have to support General DeWitt." So the Attorney General approved removing that crucial footnote from the brief. Even with that footnote out, three members of the Court still dissented. So I think that it's clear in retrospect that the outcome of these cases would have been different if the Court had had before it the facts the government were true, that were in its possession but were withheld from the Court.

<End Segment 12> - Copyright © 1983, 2010 Densho and Steven Okazaki. All Rights Reserved.