As lawyers, we guide ourselves by ethical principles to advance only legally cognizable arguments and reliable factual assertions. It is a system, executed correctly, that should be impervious to the vagaries of political whim, the will of the mob, or undue influence, and that should focus solely on ascertaining the facts and upholding the rule of law.
There have been times in our history, however, when prejudice, fear, or expediency have corrupted this ideal. The forced relocation and incarceration of persons of Japanese ancestry during World War II is one of those instances. This year marks the 75th anniversary of a series of governmental actions (both executive and legislative) that led to the incarceration of about 110,000 persons of Japanese ancestry, including my mother, in detention camps for years, without individual determinations of whether a detainee posed a threat to military assets. Those actions and the lawsuits challenging those actions ultimately made their way to the U.S. Supreme Court. In those cases, the Supreme Court dealt with a complex interplay between the executive branch (the War Department, the Department of Justice (DOJ), and the Solicitor General’s Office) and the legislative branch (Public Law 503 criminalizing violations of an executive order).
It is now undisputed that in Hirabayashi v. United States, 320 U.S. 81 (1943), Yasui v. United States, 320 U.S. 115 (1943), and Korematsu v. United States, 323 U.S. 214 (1944), the system broke down horribly. Those cases stand as a stark reminder that, in order to fulfill the promise of our democracy, we must always be vigilant as lawyers and as judges to adhere to our ethical and professional duties as well as the basic principles of our democracy. The discussion of the Hirabayashi and Korematsu cases in this article focuses on the conduct of the lawyers in connection with their briefing and argument to the U.S. Supreme Court. There was significant other misconduct that formed the basis for Hirabayashi’s, Yasui’s, and Korematsu’s successful prosecution of writs of coram nobis in the 1980s (overturning their convictions); however, because that misconduct involved persons in the War Department and not the lawyers, I am not discussing it in this article. To learn more, I suggest reading Justice at War by Peter Irons, Enduring Conviction: Fred Korematsu and His Quest for Justice by Lorraine K. Bannai, or the Ninth Circuit’s opinion in Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).
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