Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Truth, Reconciliation, and Korematsu v. United States
Date: January 2, 2021
Guests: Judge Edward M. Chen, Don Tamaki
Host: Dahlia Lithwick

Episode Overview

This episode of Amicus revisits the infamous Supreme Court case Korematsu v. United States, which upheld the mass internment of Japanese Americans during World War II. Inspired by the documentary Alternative Facts: The Lies of Executive Order 9066, host Dahlia Lithwick convenes a conversation with Judge Edward M. Chen and Don Tamaki—both of whom worked to overturn Fred Korematsu’s conviction decades later. Together, they examine the deep roots of anti-Asian racism, the fabrication and suppression of evidence underpinning the internment, the Supreme Court’s failure as a check on government power, and the lasting importance of truth, accountability, and reconciliation for American democracy.

Key Discussion Points & Insights

The Historical Roots of Anti-Asian Racism

• Racism as American Tradition: Anti-Asian racism did not begin in WWII; laws like the Chinese Exclusion Act of 1882 codified exclusion and scapegoating well before Pearl Harbor.
  • “Racism against Asian Americans does not begin in World War II, however...it’s a long-standing problem that long predates Fred Korematsu.” (Dahlia Lithwick, 06:00)
• Patterns of Prejudice:
  • Government and society consistently determined who “belongs,” preserving and enforcing white supremacy by targeting new populations as laborers and subsequently as scapegoats during economic downturns.
  • “The effort was to benefit from their contributions in terms of labor, but to keep them moving so they would not establish roots in America.” (Don Tamaki, 07:05)

The Path to Japanese American Internment

• Military Leadership’s Role: General DeWitt, along with state leaders like Earl Warren, stoked unfounded public paranoia about Japanese Americans as spies or saboteurs post-Pearl Harbor, despite contrary evidence.
  • “The most striking thing, however, about this whole period of history is…the claims that they were engaging in espionage and sabotage were completely made up. But the government knew it at the time...” (Don Tamaki, 11:04)
• Scapegoating as Policy: The longstanding depiction of Asian Americans as perpetual foreigners made them easy targets for mass action.

The Legal Road: From Curfews to the Supreme Court

• Key Cases:
  • Yasui and Hirabayashi challenged race-based curfews.
  • Korematsu challenged the full exclusion/internment.
  • “That laid the groundwork for…rounding up and exclusion. It’s phrased as exclusion but really an internment…” (Judge Chen, 13:05)

Life in the Camps—The Human Toll

• Family Trauma & Rapid Displacement:
  • Don Tamaki describes his family’s experience: immediate arrest of community leaders, forced removal from home, confinement in unsanitary racetrack stalls, and immense material and personal loss.
  • “The velocity in which this happened was startling...The entire family was put in a horse stall without heat, without hot water...” (Don Tamaki, 15:00)
• Kafkaesque Logic:
  • The “evidence” for internment: lack of sabotage “proved” imminent sabotage.

The Use—and Suppression—of False Facts

• Government’s Knowledge and Cover-Up:
  • Internal DOJ and military communications revealed officials knew their “evidence” was false.
  • Whistleblowers tried to alert higher-ups; their memos explicitly warned, “we are about to tell lies to the U.S. Supreme Court.” (Don Tamaki, 00:07; 29:18)
  • Footnotes referencing exculpatory Navy and FBI reports were removed from briefs at the highest levels to sustain the policy.
  • Evidence was literally burned; but undocumented copies survived and were discovered decades later.
  • “The original galley proofs were ordered burned…one missing document…was found in the Department of Commerce…37 years later.” (Don Tamaki, 30:19)

The Supreme Court’s Failure as a Guardian

• Court Deference, Stereotyping, and Abdication:
  • The Supreme Court accepted military necessity on faith, disregarding evidence or questions of racial bias.
  • “The court basically says, I don’t care about the facts. It’s what the government says. We’re not going to second guess.” (Judge Chen, 42:13)
  • Explicit stereotyping and racism were evident in the majority, even among the court’s liberals.
• Memorable Dissents with Lasting Warnings:
  • Justice Murphy: “Talk about profiling. This is sort of the mother of all profiling in some ways.” (Judge Chen, 36:03)
  • Justice Jackson: “The case lies around like a loaded weapon, ready for the hand of any authority who could put forth a plausible claim of urgent need.” (Don Tamaki, 37:05)

Reopening the Case: Coram Nobis & Historical Correction

• What is Coram Nobis?
  • A little-known writ allowing a conviction to be vacated long after sentencing, used when new crucial facts (like government fraud) come to light.
  • “It does allow for revisiting and reopening of a case if…you find that there was a fundamental injustice, a violation of due process.” (Judge Chen, 39:06)
  • Not about compensation, but about clearing the name and correcting the record.

Legacy and Living Echoes: Muslim Ban and the Courts

• Korematsu’s Return—Trump v. Hawaii:
  • The legal and rhetorical logic of Korematsu was echoed in 2018’s Trump v. Hawaii upholding the “Muslim ban.”
    • Both relied on national security rationales to limit scrutiny of government actions targeting minorities.
    • The Supreme Court finally “overruled” Korematsu in name, but critics argue it repeated the logic in practice.
  • “Korematsu was overruled in the court of history, but then basically comes to the same conclusion…when the government invokes…the magic incantation of national security, the court is not going to ask any questions.” (Don Tamaki, 51:37)
  • “Justice Sotomayor…lists overtly that the court chooses…to blinker itself to the evidence of racial animus because that’s how they get to their conclusion.” (Dahlia Lithwick, 50:50)

Notable Quotes & Memorable Moments

• On the Government’s Cover-Up
  • “The whistleblowers who…had plainly said in their memos that we’re about to tell lies to the U.S. supreme Court…they were rebuffed and they kept their mouth shut.”
    — Don Tamaki (00:07, 29:18)
• On the Court’s Responsibility
  • “If anything underscores the duty of the court to serve as a check…that the government is being forthright…and it didn’t do so in this case.”
    — Judge Chen (00:23, 27:00)
• On the Dangers of Precedent
  • “The case lies around like a loaded weapon, ready for the hand of any authority who could put forth a plausible claim of urgent need.”
    — Justice Jackson, as cited by Don Tamaki (37:05)
• On Lasting Lessons for Today
  • “There are three parts to this playbook… appeals to prejudice, fear-mongering and scapegoating, and trafficking in conspiracy theories, falsehoods, and alternative facts…once they become normalized and grip the culture, then almost anything is possible.”
    — Don Tamaki (54:49)
• On Optimism and Judicial Idealism
  • “I have a deep and abiding faith in the courts…They still represent the beacon of hope for our society. And I still have faith. I have to have faith because that’s my job.”
    — Judge Chen (58:05)
• On Remembrance and Justice
  • “One of the lessons…is that where there’s an injustice, we cannot afford to forget it…We need to be reminded of it so that we can do better.”
    — Judge Chen (58:05)

Important Timestamps and Segments

• Opening Reflections on Government Deception
  • 00:07–00:23: Don Tamaki & Judge Chen on knowing lies to SCOTUS
• Setting the Historical Context of Anti-Asian Racism
  • 06:19–08:31: Don Tamaki & Judge Chen on patterns leading to internment
• Internment Policy and Human Experience
  • 14:49–18:15: Don Tamaki’s personal/family account of camp life, loss, and injustice
• Official Cover-Up and Destruction of Evidence
  • 19:37–29:18: Don Tamaki, Judge Chen on internal DOJ struggle, burnt reports, whistleblower silence
• Materiality to Supreme Court Outcome
  • 32:41: Judge Chen on how cover-up shaped the Court’s decision
• Legal Mechanisms for Redress—Coram Nobis
  • 37:38–40:20: Explanation and significance in overturning Korematsu’s conviction
• Reverberations in Modern Law—Muslim Ban
  • 45:08–53:01: Don Tamaki & Judge Chen on parallels with Trump’s Muslim ban, judicial deference
• Reflection on Truth, Reconciliation, and Democracy
  • 54:49–61:26: Don Tamaki and Judge Chen on national memory, activism, faith in courts

Closing Reflections: Lessons for Today

• Truth Matters: The Korematsu case illustrates the catastrophe of abandoning factual scrutiny and the dangers of government power unchecked by the judiciary—lessons urgently relevant in eras of “alternative facts.”
• Precedent Endures: Even when later “overruled,” bad decisions can echo through new injustices if not fully confronted and corrected.
• Reconciliation is Ongoing: Justice requires not only redress for past wrongs but vigilance, cultural change, and courts committed to their constitutional role.
• Hope in Law: Despite its failures, the judicial system is held out as the essential protector of minority rights and the embodiment of the nation’s commitment to justice—faith which both guests urge listeners to nurture.

For Further Exploration

• Film: Alternative Facts: The Lies of Executive Order 9066

  • Documentary which inspired the episode and deep-dive examination

• Recommended Reading:

  • Korematsu v. United States decision and dissent
  • Trump v. Hawaii (Muslim Ban) decision, especially the majority and Justice Sotomayor’s dissent

This episode is a compelling reminder that the past, when left unexcavated or unexamined, remains perilously present. The duty to pursue truth, reconciliation, and justice—no matter how much time has passed—is both a legal and moral imperative for all who care about democracy.