[RADIOLAB INTRO]

JAD ABUMRAD: Okay, ready?

ROBERT KRULWICH: Mm-hmm.

JAD: Alright, Jad.

ROBERT: Robert.

JAD: Radiolab. So Robert.

ROBERT: Yes sir.

JAD: The day is here. The day is here, is here.

ROBERT: (laughs) You have been getting ready for this, for this whole... We can just tell people that Jad last year produced...

JAD: With an amazing team.

ROBERT: A spinoff from Radiolab. It is a series about the law.

JAD: The law.

ROBERT: And the Supreme Court of the United States.

JAD: The highest court in the land. Yeah, the idea was to take, to take the Radiolab thing. The way of looking, the way of seeing, the way of sounding, and producing, and apply to this bizarre opaque body of robed figures.

ROBERT: Robed as in people who wear black robes.

JAD: Robed.

ROBERT: That is not an English word.

JAD: No it isn't, but I'm-

ROBERT: Robed.

JAD: It's an Old English word, actually.

ROBERT: Okay.

JAD: It's actually sort of the common law word that they used to-

ROBERT: (laughs)

JAD: Use for robes. No, so the show is called More Perfect. The idea behind it is that we could tell personal human surprising, thought provoking stories about not just the justices, but the people and the ideas that get in front of the court. And in the process could we give ourselves a new way of thinking about this country.

ROBERT: Yep.

JAD: That was the idea.

ROBERT: Mm-hmm. It worked pretty well too.

JAD: I thought it worked all right.

ROBERT: The first season, which was enormously popular. I think was enormously popular because these as you call them robed people.

JAD: (laughs)

ROBERT: These people in black, were, were, were, had pulsing hearts. You know they would sit down by themselves, and go crazy with concern. They would-

JAD: Yep.

ROBERT: They were throbbing, heart full, nutty, passionate, angry, fair, beautiful people. It was really quite something.

JAD: Aww, thank you. Okay, so now Robert I would, I would love to play you the first episode. The very first episode of the season. And one of the sort of central ideas of this season more perfect is that, that these moments in history that we thought were gone, they're never really gone. They will always swing back into the now. And one of the cases that is very much swinging back into the now is a... Well I... Maybe we should just play it. As you're listening, uh, know that there are already a couple of more extra episodes already in the More Perfect feed Radiolab.org/more perfect, or More Perfect on iTunes, Google Play, whatever. Okay here it is. Episode number one, season two.

JAD: In February of 2017 Supreme Court Justice Ruth Bader Ginsburg said something that surprised a lot of people.

[ARCHIVE CLIP, Ruth Bader Ginsburg: Well I would say that we are not experiencing the best of times.]

JAD: She stepped straight into the political fray, and addressed this political moment.

[ARCHIVE CLIP, Ruth Bader Ginsburg: There was a great man, uh, once said that the true symbol of the United States is not the bald eagle, it is the pendulum. And when the pendulum swings to far in one direction it will go back. Some terrible things have happened in the United State, but one can only hope that we learn from those bad things.]

JAD: Today we're gonna ride the pendulum to the dark side. We're gonna start with one of the most infamous decisions the court has ever made, the Korematsu decision. You might imagine it's not gonna be the happiest of situations, but the story that we're gonna tell you today, and tomorrow as well actually, they're not stories of bitterness. Because this curious thing happens in both cases when our characters can't find justice inside the Supreme Court. They stop looking for it there, and they find it somewhere else entirely. Producer Julia Longoria starts us off.

JULIA LONGORIA: The year is 1967, and the place is San Lorenzo High School in the East Bay of California. And we're in a U.S. history classroom.

KAREN KOREMATSU: I was actually a junior in high school.

JULIA: This is Karen Korematsu.

KAREN KOREMATSU: I'm the executive director, and founder of the Fred T. Korematsu institute in San Francisco.

JULIA: So on this particular day Karen is sitting at the back of the classroom.

KAREN KOREMATSU: And our teacher had assigned each of, uh, my classmates a little paperback book to read.*

JULIA: You know books about American history, government

KAREN KOREMATSU: And the assignment was to then, uh, get up in front of the, the class, and give an oral book report. I mean this is a long time ago, so that's the way they used to do things. I don't even remember what my, my book was, or my subject but...

JULIA: But Karen she was just sitting there in class listening as one by one her classmates got up, talked about George Washington, or Abraham Lincoln, or whatever.

KAREN KOREMATSU: And then my friend, Mia who is, um, Japanese American, third generation like myself. Got up in front of the class, and her book was called Concentration Camps, U.S.A, about the Japanese American internment. And I thought "Oh, that's interesting. I hadn't heard about that before. What's that about?"

JULIA: Mia's book report went something like this. In 1941 the United States of America was attacked.

[ARCHIVE CLIP, Franklin Delano Roosevelt: ... was suddenly, and deliberately attacked.]

JULIA: And the president.

KAREN KOREMATSU: President, uh, Roosevelt.

[ARCHIVE CLIP, Franklin Delano Roosevelt: As commander and chief ...]

KAREN KOREMATSU: Had to respond.

[ARCHIVE CLIP, Franklin Delano Roosevelt: I have directed that all measures be taken for our defense.]

JULIA: So in terms of defense one of the big questions for Roosevelt was what happens if the Japanese invade the Continental US. They'd probably come in on the West Coast, and you had more than 100,000 Japanese Americans living on the West Coast. Like would they turn against the United States, they didn't know.

KAREN KOREMATSU: And so...

JULIA: Her friend Mia explained to the class.

KAREN KOREMATSU: On February 19, 1942 President Roosevelt issued executive order 9066. That gave the military the authority to forcibly remove anyone of Japanese ancestry from the West Coast.

[ARCHIVE CLIP, Franklin Delano Roosevelt: All of them, citizens, and aliens alike would have to move.]

KAREN KOREMATSU: She goes on to explain these, the horrific circumstances, and how you know a 120,000 people of Japanese ancestry had been, you know forcibly removed from their homes.

JULIA: She explained they were put into these detention camps.

KAREN KOREMATSU: Really without any due process of law. But then she went on to say but there was this one man...

JULIA: Who refused to go to the camps.

KAREN KOREMATSU: And he was arrested.

JULIA: And he sued the government, and took his case all the way...

KAREN KOREMATSU: To the Supreme Court, and then he became a landmark Supreme Court case.

JULIA: And that man's name is Fred Korematsu.

KAREN KOREMATSU: "Oh!" I said to myself. That's my name.

JULIA: She says the class got really quiet.

KAREN KOREMATSU: And I had 35 pairs of eyes turn around and looking at me.

JULIA: "Okay, yes." she thought "My last name is Korematsu, my dad's name is Fred."

KAREN KOREMATSU: But no way.

JULIA: There's no way it's my dad.

KAREN KOREMATSU: Someone would've of told me. So, of course and I go running home and confronting my mother and asking her.

ELIE MYSTAL: What did she say?

KAREN KOREMATSU: Well I got the standard, uh, answer, uh, "Wait til your father gets home, and you can ask him."

ELIE MYSTAL: (laughs)

JAD: That voice you heard by the way was Elie Mystal our legal editor.

KAREN KOREMATSU: And by the time he, uh, had got home it was eight o'clock in the evening. And so that's a long time after, you know 3:30 in the afternoon. And I calmed down a little bit, and I asked him, and, and he said, uh, "It happened a long time ago, and what he did he felt was right, and the government was wrong, and it was that clear and simple."

KAREN KOREMATSU: I could just see this hurt going over his face, and I just couldn't ask him any more questions.

JULIA: Karen says it wasn't until years later that she learned what really happened, and why her dad never wanted to talk about it.

[ARCHIVE CLIP, Fred Korematsu: Well I was, uh, 21 then.]

JULIA: This is Fred Korematsu. It's a tape of him from the Densho archives.

[ARCHIVE CLIP, Fred Korematsu: And I was up on the hill Sunday morning with my girlfriend.]

JULIA: And Fred's story starts out on a date.

[ARCHIVE CLIP, Fred Korematsu: You know when you're that age, you know you have a girlfriend just like anybody else, and she was more important to me than anything.]

JULIA: Fred and his girlfriend Ida are driving in the hills above San Francisco, looking down on the city, the Golden Gate Bridge. He'd been dating this girl for a while now.

[ARCHIVE CLIP, Fred Korematsu: She, she was Caucasian.]

JULIA: Italian American. Most of his friends were Caucasian.

[ARCHIVE CLIP, Fred Korematsu: And we were in a car, and we were deciding what to do with such a nice day, either go picnicking or something like that. And then all of a sudden I heard, you know...]

[NEWS CLIP: We interrupt this program to bring you a special news bulletin. The Japanese have attacked Pearl Harbor, Hawaii by air. President Roosevelt has just announced ...]

[ARCHIVE CLIP, Fred Korematsu: He came on the air in her car radio.]

[NEWS CLIP: They've come with an electrifying shock. There are crowds right now gathered in front of the White House, and the State Department, and the Japanese Embassy.]

[ARCHIVE CLIP, Fred Korematsu: And I was quite shocked. We both were.]

JULIA: Fred knew there was a war on, and that the U.S. was likely to get involved. He'd even tried to enlist in the U.S. Military, but was denied because he was Japanese, American. And he said sitting there one of his first thoughts was "Why does it have to be Japan?"

[ARCHIVE CLIP, Fred Korematsu: If some country was going to attack Pearl Harbor, I wish it was Russia. You know? I just thought about that, you know. I was bitter with Japan for having this happen. So I took her home, and then I went home.]

JULIA: So he gets home.

[ARCHIVE CLIP, Fred Korematsu: My parents were all shocked, and they were all sitting around the living room.]

JULIA: The house is just in despair. His mom is in tears.

[ARCHIVE CLIP, Fred Korematsu: They were proud of being Japanese, you know. They obeyed the law. They did everything that supposed to been, to have this happen it put them in shame. It was even hard to talk to them after that.]

JULIA: Fred had a traditional immigrant Japanese American family. His parents were born in Japan, and then all his brothers were born here in the U.S.

[ARCHIVE CLIP, Fred Korematsu: Born in Oakland, California.]

JULIA: He was the third out of four brothers, and being the third, not the second, or the first. That mattered.

LORRAINE BANNAI: Absolutely. Fred, um, was in a unique position, as the third son he could resist.

JULIA: We asked Lorraine Bannai.

LORRAINE BANNAI: I teach at Seattle University School of Law.

JULIA: For some context. She's a law professor, and a friend of Fred's family.

LORRAINE BANNAI: The cultural tradition is that the first son is the favorite son.

JULIA: The oldest was going to inherit the family garden and nursery business. The second would help out with that business.

LORRAINE BANNAI: Fred as the third son was very low on the totem pole.

JULIA: His parents didn't have the same expectations of him. Relatively speaking he was kind of off the hook. Unlike his older brothers he didn't speak much Japanese, and he felt more American than anything else.

[ARCHIVE CLIP, Fred Korematsu: When I was in school we started each day with the Pledge of Allegiance. I studied American History. I always been good American citizen.]

JULIA: So when he came home that Sunday when Pearl Harbor was attacked his family's response to the whole thing was unsettling.

[ARCHIVE CLIP, Fred Korematsu: I, um, I didn't know what to do.]

JULIA: And Fred says pretty soon after things got very weird.

[ARCHIVE CLIP, Fred Korematsu: Within a few days they put spotlights on the whole nursery at night. And they had a guard standing right near our home that rode around the fence there, watching you. Because I went out one night to have a cigarette, you know I was standing on the porch and I lit a cigarette. And, uh, a guard yelled out if I was signaling somebody. Ridiculous.]

JULIA: Then came Roosevelt executive order. That big order 9066 authorized the military to make a series of smaller ones.

LORRAINE BANNAI: The first set of orders was a curfew order thing that Japanese, Italians, and Germans were subject to a curfew.

JULIA: The second order was a freeze order directed just at the Japanese on the West Coast. They weren't allowed to leave the area.

LORRAINE BANNAI: And then the third order was an order that they could not remain on the West Coast except for in the custody of an approved location by the Army.

[ARCHIVE CLIP: All persons of Japanese descent were required to move to assembly centers.]

JULIA: There about 15 of these assembly centers, and Japanese Americans were told to report to one of these centers by a certain date.

[ARCHIVE CLIP, Fred Korematsu: When the evacuation notice came...]

JULIA: Fred's family began to scramble.

[ARCHIVE CLIP, Fred Korematsu: They had to worry about what they were going to take. What was going to happen to nursery? So, especially my mother, you know the tension, and worries.]

JULIA: So in the days before his family left Fred made a decision.

[ARCHIVE CLIP, Fred Korematsu: Me being the third son, you know. (laughs) I, um, I had my own worries, and I had my own girlfriend, my own problems.]

JULIA: He decided not to go with his family.

[ARCHIVE CLIP, Fred Korematsu: I, um, talked with them that uh, that I didn't want to leave.]

JULIA: I won't leave with you. He didn't want to leave Ida behind, and he thought maybe the two of them could make a break for it later on.

[ARCHIVE CLIP, Fred Korematsu: Leave the state before the evacuation deadline. And, um, they said "Fine, if you could do it, go ahead."]

LORRAINE BANNAI: He was the third son so he knew that his older brothers would be able to take care of the family, and they said he was a grownup, and he should make his own decisions, and so he did.

JULIA: He went off, and got his own apartment, and his own job as a welder, and kind of lived under the radar. He knew his brothers would be there to take care of his parents.

[ARCHIVE CLIP, Fred Korematsu: If you're with the family like my family, or any Japanese family, you feel the pressure, and the sadness. But on the outside it's different, it's just like a normal life, you know. Just like we've been living all the time.]

[ARCHIVE CLIP, Fred Korematsu: I felt right at home. You know I says "Well, heck, I, I, I'm an American citizen too.", you know? I didn't feel guilty because I don't think I did anything wrong.]

JAD: I sense that he was politically aware at this point.

LORRAINE BANNAI: If you're asking me about whether he refused to go as an act of political resistance, I don't think initially. Unconsciously he probably knew that what was happening to Japanese Americans was wrong. But I don't think he had the words for it that we might have today.

JULIA: It's on his way home from work one day that he reads in the newspaper about his parents, and all the other Japanese Americans in the area being taken away to camp.

[ARCHIVE CLIP, Fred Korematsu: It made me sick to my stomach, you know that I could see my parents going in, you know and my brothers going into camp, and, uh, I'm not there, you know. But that was the only time that I felt, um, kind of lonely, you know like well what am I going to do now. You know?]

JULIA: It begins to slowly dawn on him what he's done. By staying in the Bay Area he is officially breaking the law, and he and Ida aren't sure what that means. Like will they be thrown in jail, or worse. He talks in the archives about how he's worried, and Ida is worried too, because now he could get arrested. So they start to think about their options. Fred decides to get an I.D. with a Spanish sounding last name on it, so he won't be recognized as Japanese. And then Ida says essentially that might not be enough.

[ARCHIVE CLIP, Fred Korematsu: She pulled out an article regarding the plastic surgery. And, uh, she says "What do you think of this?" I looked it over, and well I didn't think it was a good idea.]

LORRAINE BANNAI: But she said "Hey why don't you think about this. This might be a good thing that will allow you to stay here." So the idea would be that he'd, you know have his eyes doubled, or something like that.

JULIA: A plastic surgery procedure where you put a fold in the eyelid, so you look more white.

LORRAINE BANNAI: Less Japanese American.

[ARCHIVE CLIP, Fred Korematsu: And she says "Do you think it'd work?", and I said "I don't know." "Well" she said "Shall we look into it?", and, uh, well I said then "We haven't got anything to lose.", so we decided to try it.]

JULIA: So Fred gets into his car, and he drives into the city into San Francisco, and he just stops in front of the doctor's office, and he starts pacing.

LORRAINE BANNAI: Walking up the steps of this Victorian, and then walking down the steps to leave thinking this was a really crumby idea. And then walking back up the steps thinking well yeah maybe Ida's right, it's a good idea. And then down the steps this is a ridiculous idea. Giving some doctor your hard earned money to change your face.

JULIA: So he goes up and down, and up, and down, and up, and down. Until he decided to just go in and have the procedure done.

LORRAINE BANNAI: He really did it as a way to protect them as they tried to leave the state.

JULIA: The doctor said he was going to work on his eyes, and then also fix a broken nose.

[ARCHIVE CLIP, Fred Korematsu: I had a broken nose from playing football, and I never had it fixed. And, um, he said he could do pretty good work on me.]

JULIA: But it turned out he didn't do everything he said he would.

[ARCHIVE CLIP, Fred Korematsu: Well he just took my money, that's what it was, actually. There wasn't anything changed except I didn't have a broken nose anymore. (laughs)]

JULIA: So he drives back to the East Bay with a new nose, but the same eyes. And shortly after that day at the doctor's office he's out buying cigarettes at a convenience store, and a clerk recognized him, and reported him.

LORRAINE BANNAI: And one day walking down the street he was stopped, and arrested. Um, and spent his Memorial Day in 1942 in San Leandro jail.

[ARCHIVE CLIP, Fred Korematsu: When we got caught they called her in too, you know, and, um, uh, I see the police chief talking to her for quite a while.]

JULIA: I imagine it's a small jail, and he's just been admitted, so he's sitting in the lobby, and he sees Ida come in to the front desk. He's just out of ear shot, he can't make out exactly what they're saying, but at a certain point they stop talking, and she just walks out.

[ARCHIVE CLIP, Fred Korematsu: So that was the end of it. I never did see her again.]

JAD: They never saw each other again.

LORRAINE BANNAI: No.

JULIA: So he's sitting there alone in the San Leandro jail, and they end up transferring him to Oakland jail for some reason, and then he ends up at the federal prison in San Francisco, because resisting the order was a federal offense.

[ARCHIVE CLIP, Fred Korematsu: Anyway, um, one day, um, I got a call from the guard and he told me I had a visitor, and I didn't know who it was, you know. I knew all my friends were in camp, or they were in the military.]

JULIA: But Fred goes down to the visiting room anyway, and there's this man there.

ERNEST BESIG: I'm a New Yorker who, well I believe in civil liberties. And when the right of the people is being denied this is something that I'm concerned about.

JULIA: The man says his name is Ernest Besig.

[ARCHIVE CLIP, Fred Korematsu: And he was a very nice fella, easy to talk to. He asked me if I needed some cigarettes, or something like that, you know. Just to break the ice. By the way I asked him "Who do you represent?"]

JULIA: And Ernest responds "Well..."

ERNEST BESIG: The ACLU.

[ARCHIVE CLIP, Fred Korematsu: And I thought it was maybe with church or something like that.]

JULIA: We have no way of knowing what exactly was said between Fred, and Ernest Besig. Both men have passed away, but it seems like something important must have happened in this conversation. Because if as Lorraine Bannai says...

LORRAINE BANNAI: I don't think he had the words for it that we might have today.

JULIA: Fred didn't have the language of resistance before this moment. Something in that conversation must have given it to him, because when Ernest Besig asked him "Do you want me to represent you in a court of law?" Fred says "Yes."

LORRAINE BANNAI: Yes.

JAD: What do you imagine the words were that might have turned him in that moment?

LORRAINE BANNAI: I imagine that Besig must have said to Fred we think that what's happened to Japanese Americans is unconstitutional. We'd like to bring a lawsuit to say that Japanese Americans are being sent away only because of their race, and in that he gave Fred language, for what I think Fred knew was wrong.

JULIA: Besig tried to get Fred out of jail, but the military stepped in, and said he had to join his family in camp. They were at a place called Tanforan Race Tracks. It was a temporary holding spot, so that meant that the first place that Fred went after jail was a converted horse stall.

[ARCHIVE CLIP, Fred Korematsu: I opened the door and, uh, there's gaping holes on the walls. The wind just blew in, and the dust blew in there, and everything.]

JULIA: And this was a small horse stall because Fred had asked for his own. He wanted to sit, and think about what to say to his family who are also at Tanforan.

LORRAINE BANNAI: He sat, and looked at the single lone bare light bulb above, and the smell of manure, and hay.

[ARCHIVE CLIP, Fred Korematsu: I mean it's made for horses, not for human beings. And then all of a sudden I hear a knock on the door, and I opened it, and it was my brother. He say's "Hey you can't stay here, you, you got to come and s-, see the folks."]

JULIA: So he walks Fred over to the stall where his family's been living.

[ARCHIVE CLIP, Fred Korematsu: And I was surprised the way they fixed up their stall. They filled up all the cracks, and they put newspaper for the walls. You know papered it all up.]

JULIA: This was a common thing for these families. Thousands of them were transferred to more permanent camps, and many stayed there for up to three years.

LORRAINE BANNAI: Over time the community kind of tried to build lives for themselves. You hear stories, and see pictures of people building small Japanese gardens out of what they found in the area. You saw news reels about the people who made the desert bloom.

You eventually saw people forming, you know baseball teams.

[ARCHIVE CLIP, Fred Korematsu: My brother he was involved in various Japanese activities. And, uh, he thought it might be a good idea for me to get some suggestions, and opinions regarding to, uh, if I should fight the case or not.]

JULIA: So Fred's brother called a meeting. He got about 30 young people together, I imagine it was like in a mess hall or something like that, and they discussed Fred's case.

[ARCHIVE CLIP, Fred Korematsu: They were discussing it to themselves, or in little groups. And I stood around, and I waited for someone to speak, but no one actually came out to speak to me.

JULIA: I can see Fred kind of standing in a corner as people are gathered in small groups whispering to each other, stealing glances at him. But no one says a word to him.

[ARCHIVE CLIP, Fred Korematsu: Um, finally one did, and he said "Fred, uh, we're undecided on if I should fight the case or not, because they don't want to make any more disturbance." Anything to upset the parents right at this time because they were too upset already, and being, just being in camp.]

JULIA: They told him they're parents had been through enough leaving their lives behind. Basically they said "We can't help you." But there was one Japanese American group that did decide to say something about Fred's case.

ERNEST BESIG: What's the name of the group? J-A-C-L.

JULIA: Ernest Besig had a nickname for this group. The Japanese American Citizens League.

ERNEST BESIG: The JACLs. I met with the leadership of that group. Several of them I urged them to oppose the exclusion, but they didn't seem to be particularly interested.

LORRAINE BANNAI: The JCL.

JULIA: Condemned Fred's case, and anyone else who fought against the government orders.

LORRAINE BANNAI: Said it would not support any of these individuals who were fighting the orders, and called them self styled martyrs.

JAD: Wow. They used that phrase?

LORRAINE BANNAI: Yes. They would basically get everyone else into trouble.

[ARCHIVE CLIP, Fred Korematsu: To do this by myself I just wonder if I was doing wrong, or, or maybe putting them in shame by, uh, bringing the issue up again. Uh, because the Japanese people they, they're peaceful people, and they, they like to leave things alone if they can. Because they were in enough trouble as it is, because of this Pearl Harbor attack. And the country blamed them, so they had this sort of a guilty complex. Even though, um, uh, they had nothing to do with it.]

[ARCHIVE CLIP, Fred Korematsu: Majority of them just avoided me, so therefore I, uh, assumed that, um, uh, that, uh, I got myself in this problem, and, uh, therefore it was my problem, and, and not theirs.]

JULIA: Fred continued to fight his case. He argued that basically rounding up thousands of Japanese American, American citizens without a trial, without due process basically amounted to racial discrimination. His case made its way up, and down the court, and eventually two and a half years after he'd met Ernest Besig in that jail cell the case arrives at the Supreme Court.

KAREN KOREMATSU: You know he, he thought that by the time his case got to the Supreme Court-

JULIA: That's Fred's daughter Karen again.

KAREN KOREMATSU: He would be able to vindicate his family, and everyone that had been incarcerated.

ELIE MYSTAL: Hmm.

KAREN KOREMATSU: I mean that's how much he believed in the Supreme Court.

ELIE MYSTAL: And so when, when that didn't happen he felt like...

KAREN KOREMATSU: He, he felt like it was his fault.

ELIE MYSTAL: Hmm.

KAREN KOREMATSU: That's a big burden to carry around.

JULIA: What ends up happening is on December 18, 1944 the Supreme Court ruled against Fred. It's kind of a complicated decision. The Supreme Court said racial distinctions, when the government is making racial distinctions it's serious. We need to look at this very, very carefully. And that was a big precedent, so in a lot of ways it's kind of a victory for people fighting racial discrimination.

JULIA: But then the court turned around and said even though racial distinctions are serious, this one is not strictly racial. We're at war with the Japanese Empire, therefore rounding up Japanese American citizens is a way to defend the nation.

JAD: God if you're Fred at this point, like it sounds like, it sounds like lonelier than I can almost imagine., because your, you're by yourself pretty much on all fronts. The country that you feel so a part of, that you want to actually enlist in the military to fight for doesn't seem to want you at that moment. Your own community doesn't seem to want you. Your family is ashamed by you. Your girlfriend is gone. I can't imagine being more alone at this point.

LORRAINE BANNAI: And he never shared that with my brother, or I. He shared it with my mother, but, but we didn't, that wasn't part of our dinner conversation.

[ARCHIVE CLIP, Megan Kelly: They're discussing drafting a proposal to reinstate a registry for immigrants from Muslim countries.]

[ARCHIVE CLIP, Carl Higbie: Yeah, and, and perfect, to be perfectly honest it's really excited to hold Constitutional muster. We did it during World War 2 with Japanese, which you know call it what you will, maybe ...]

[ARCHIVE CLIP, Megan Kelly: Come on you're not, you're not proposing we go back to the days of internment camps I hope.]

[ARCHIVE CLIP, Carl Higbie: No, no, no. I'm not proposing that at all Megan. But what I am saying ...]

[ARCHIVE CLIP, Megan Kelly: You know better to suggest that.]

[ARCHIVE CLIP, Carl Higbie: We need to protect America.]

[ARCHIVE CLIP, Megan Kelly: I mean that's, that's the kind of stuff that gets people scared Carl.]

[ARCHIVE CLIP, Carl Higbie: Right, but it's I'm just saying there is precedent for it. And I'm not saying I agree with it.]

JULIA: This is the crazy thing about the Korematsu decision. It is still on the books. That guy Carl Higbie got on Megan Kelly, and said this stuff about Korematsu. And the very next day he got on and apologized for saying that.

JULIA: But he's right Korematsu is technically still good law. Justice Antonin Scalia once said that sure Korematsu was wrongly decided, but if you think that it's not gonna happen again, you're kidding yourself.

RICHARD POSNER: The court isn't gonna get, isn't gonna cross the president in a, in a, in a national emergency. Would you like it to? (laughs)

ELIE MYSTAL: Um, I think so. Um, would you like it to?

RICHARD POSNER: No.

JULIA: That's not Antonin Scalia, it's a judge named Richard Posner. And at the time that Elie talked to him he was on the 7th Circuit Court of Appeals. And he was widely considered by people on both the left, and the right to be one of the most influential judges in the country. He sometimes is called the tenth Supreme Court justice, and he's a big defender of the Korematsu decision.

ELIE MYSTAL: What do you say then to Fred Korematsu? What do you say then to, to a, a Japanese American about kind of the law, and the court?

RICHARD POSNER: Well they were given compensation.

ELIE MYSTAL: Right, I mean there's, there's you know the, there is you know pain and suffering. There is, there, there's anguish, right, that we can't exactly commodify.

RICHARD POSNER: Uh, yeah. But, um, at the time it all happened, shortly after Pearl Harbor it, it seemed like the right thing to do, and probably was the right thing to do. And I imagine that the officials in federal government, in, um, 1941 they probably didn't know anything about Japanese Americans on the West Coast. You think Roosevelt ever met a Japanese American. I doubt it.

ELIE MYSTAL: Right I just think that, you know-

RICHARD POSNER: So-

ELIE MYSTAL: (laughs) The fact that he hadn't ever met anybody, um, might of have been a reason for him to be more restrained in his executive orders. Right? I mean.

RICHARD POSNER: No, because all he cares about is the defense of the United States. If there's any possibility of Japanese American somehow cooperating with a Japanese invasion force then he has to move the Japanese Americans. (laughs) That's, that's, I'm sure that's all he would've thought of. Right?

ELIE MYSTAL: Well I mean I think that's all he did think of.

RICHARD POSNER: But what else could he have thought of. That's the only thing he is going to focus on, and if he doesn't he could be impeached.

ELIE MYSTAL: We he, he could also worry about citizens. Right, and I think one of the-

RICHARD POSNER: No, no, no. Look you're not, your, you're missing the priorities. The priority is defense. That's the priority. That's what these people are thinking about. You think they have time to be thinking about any, any kind of nice ideas for protecting people. (laughs) Any more than, than Lincoln did.

JULIA: What he's referring to there is a moment in 1861 when Abraham Lincoln basically tossed this alleged confederate in jail without due process. And then justified it by saying he had to save the Union. In that case Supreme Court Justice Roger Tawny ruled against him.

RICHARD POSNER: So Lincoln said "Oh well Tawny, he's the Chief Justice, and he said this jerk should be released. I guess I have to do that. He's the Chief Justice." No, you do that enough times as the president, you're out.

ELIE MYSTAL: It seems to me that, that's why we have courts. We have courts-

RICHARD POSNER: Oh come on.

ELIE MYSTAL: Courts to restrain the executive abuse.

RICHARD POSNER: That is not why we have... We do not have courts so that presidents can be checked in situations of a national emergency. That wasn't why courts were set up.

ELIE MYSTAL: So that (laughs)... Then what, I, I mean I guess I'm, I'm flailing now, but then what stops them. What, if court... If Congress can't stop him, and if the courts can't stop him, like what can stop a president in a time of war.

RICHARD POSNER: There's nobody. There's nobody who can check that. That's the president's responsibility.

ELIE MYSTAL: Hmm. Obviously I'd like a do over, because somehow in the heat of the moment I forgot that I'm talking about defending the rights of actual American citizens, and Posner is talking about people who are rebels to the country. Um, there's probably a way where I could have said, pointed that out to him.

ELIE MYSTAL: Um, in terms of the court stepping in, I mean it happens. It happened to Truman. But you know Judge Posner is right that it doesn't happen a lot. Which is why he gets to be Judge Posner, and I'm the guy that had to check Wikipedia.

RICHARD POSNER: And by the way do you think these Supreme Court Justices are great big brains.

ELIE MYSTAL: (laughs)

RICHARD POSNER: Big stars who were selected because they're the best lawyers in the United States, and their decisions are, are usually great. You think all that? I don't. I don't have a high respect for the Supreme Court at all.

ELIE MYSTAL: (laughs) Um, I'm, I...

RICHARD POSNER: Now you look at their decisions, you look at them. How they're appointed? Who appoints them?

ELIE MYSTAL: Right. This is-

RICHARD POSNER: So why do you think the Supreme Court is such a great balance to the president in a war.

LORRAINE BANNAI: This is what gets me up, and gets me going. Because I still think it can be used as a precedent.

ELIE MYSTAL: So, your, your, your, you're still worried that it can be used?

LORRAINE BANNAI: Yes.

ELIE MYSTAL: And that it... Do you think it will be? Like do you think-

LORRAINE BANNAI: Definitely. You know I think we can not take this for granted.

ROBERT: Wow that's just quite a, I mean, um... That judge is as revered, and as thought highly of as, as you guys said. Uh-

JAD: Yeah, he just actually, the thing we don't mention-

ROBERT: Judge Posner.

JAD: He just retired.

ROBERT: Yeah, he just did.

JAD: Like I think within a, with, within the last month. [crosstalk 00:40:09]

ROBERT: But you know I mean I'm listening to that, and I'm thinking wow. Um, not only is there a distinction to be made between people who are American citizens, and people who are traitors. But there's also this, this huge, this huge fact that there are German Americans by the 10s of 1000s in this country at that time. We were at war with Germany too, and Germans held big rallies in Madison Square Garden with Swastikas and supported Hitler out loud, and marched for him for a while, which they had every right to do. But, uh, they were not, um, give quite the same degree of suspicion as the Japanese, and that's a question I think for, for the court.

ROBERT: So there is an argument for Justice Posner, but there's an argument against him.

JAD: Yeah, for sure.

ROBERT: And, uh...

JAD: For sure.

ROBERT: Yeah. Wow that's really interesting. So now Fred has to solve his problem else where.

JAD: Right, so in the next part of the story the question really is like since Fred can't get justice in the court, can he find it on the outside? And he does in this, uh, place that you wouldn't expect.

ROBERT: When we come back we'll find out where that place is.

JAD: Yeah. All right so we'll continue in a moment with, uh, our featuring of Radiolab's first ever spinoff More Perfect, season two, episode one. More in a moment.

[LISTENER: This is Kevin Murrey from Fort Collins, Colorado. Radiolab is supported in part by the Alfred. P. Sloan Foundation. Enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.]

JAD: Hey I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: This is Radiolab. We're previewing, uh, the first episode of More Perfect, season two.

ROBERT: So we go back to Fred Korematsu, who as you just heard lost his case before the Supreme Court.

JAD: Mm-hmm.

ROBERT: Did not get the remedy he wanted.

JAD: Nope.

ROBERT: So now he is... I don't know what's he going to do.

JAD: Well now he ends up getting a kind of remedy.

ROBERT: And you said it was something you didn't, that, that it's not from judges.

JAD: No, not, no judges involved. And this when, when I, this, this I, this I find really, really moving. I gotta say. Just personally the whole reason to tell this story is where it ends.

ROBERT: Okay.

JAD: So-

ROBERT: Don't say anymore.

JAD: I'm not going to say anymore.

ROBERT: Yeah, just, lets go.

JAD: Let's just listen to it.

ROBERT: Yeah.

JAD: Okay, so, so producer Julia Longoria is gonna pick back up the story with what happened to Fred after the decision.

JULIA: So, the internment camp where Fred was staying closed in 1945. Um, and Fred had gotten permission by that point to work at a steel mill in Detroit. So he was living in Detroit. He fell in love with a woman named Katherine. They got married, moved back to the Bay Area, and had two kids. And Karen his daughter says that they were kind of ostracized from the Japanese American community. They grew up outside of the Japanese community.

KAREN KOREMATSU: He was involved in Boy Scouts, Girl Scouts. I w-, I was in Girl Scouts so you know the camps. When we had to open the camp he would work on that. Uh, the Presbyterian Church in Oakland, and then he became an elder.

JULIA: He even joined the Lion's Club.

KAREN KOREMATSU: And he was president twice.

JULIA: And Karen says throughout the 40s, the 50s, the 60s she never heard him talk about his case.

KAREN KOREMATSU: No never. No never. He, he just... He never, he never, he never told the story.

JULIA: Even after she confronted him about it in high school.

KAREN KOREMATSU: Yeah its, that's it.

JULIA: But she says in like 1969 ish.

KAREN KOREMATSU: 68 or 69.

JULIA: When the world was in a very different place they got a phone call.

KAREN KOREMATSU: Back in those days you know my parents phone number was in the phone book of all things. So I mean my father would get phone calls from law students that wanted to interview him. But he, but he really didn't want to talk about his case much. He just, it was just too painful.

JULIA: But this time there was a professor on the line.

KAREN KOREMATSU: From the University of California, Berkeley.

JULIA: He was a Japanese guy actually, and he told Fred I really, really want you to come into my class.

KAREN KOREMATSU: There was an ethnic studies class that was actually off campus. Ethnic studies was not even recognized then. So he, he talked at, at this ethnic studies class, and these kids were brutal. I mean you see Berkeley at that time had this, you know notorious reputation of being very radical.

JEAN QUAN: People were asking questions during the whole hour.

JULIA: This is Jean Quan former mayor of Oakland. She was in the class that day.

JEAN QUAN: It was important time, that you at, at different times of life you have to learn how to stand up to authority.

KAREN KOREMATSU: And certainly these students were like you know fist pounding, saying "Well why didn't you, why didn't you protest? Why didn't you do this, why didn't you do that?"

JULIA: Why didn't you fight harder?

KAREN KOREMATSU: And were almost, you know angry that he wasn't angry.

JEAN QUAN: You know I think you got to remember that a lot of these students didn't even know anything about the camps. Many, many kids had not had frank discussions with their own parents. So with Korematsu he was probably a surrogate for like their parents. How could they have gone through that, and never told me. They had no right not to tell me. And so they're really angry at their parents.

JULIA: Surrogate or not Fred felt like he was being indicted all over again.

KAREN KOREMATSU: It, it was such a painful experience for my father. He never wanted to speak to anyone again.

JULIA: Fred would ultimately challenge his conviction in a lower court, and he would win. The Supreme Court decision still stands, but he was able to clear his own personal name. And in around 1990, again the world is in a very different place. He finds himself again on a college campus. This time...

KAREN KOREMATSU: The University of, of Michigan. My father, and mother were walking with some other students across a campus to see the newly renovated library. And you know my father loved architecture, it was very old, gothic, uh, library.

JULIA: So they're walking through this sort of open quad looking at the architecture. And then they come upon this group of students.

KAREN KOREMATSU: A group of Arab American students.

JULIA: The students start walking toward him.

KAREN KOREMATSU: They all of a sudden kind of surrounded my father, and they had this certificate, um, to give to my father, to thank him for speaking up. So, that was meaningful to him.

JULIA: Why, why did that make you emotional? Why that story?

KAREN KOREMATSU: Um, (laughs) uh, well because it, it meant so much to my father. That this group really honored him, that also had been racially profiled. You know to think that he would be able to touch their lives. It, it kind of reinforced what he was doing.

ELIE MYSTAL: Do, do you have the same faith in the Constitution that your dad did? That, that-

KAREN KOREMATSU: Yes I have great faith in our Constitution.

ELIE MYSTAL: Hmm.

KAREN KOREMATSU: It, it's a great document, it, uh, so happens though that it's the way that certain people interpret it that gets us into trouble. Yes, definitely.

[ARCHIVE CLIP, Donald Trump: The danger is clear. The law is clear. The need for my executive order is clear.]

[NEWS CLIP: The travel ban 3.0 coming here tonight. The Trump administration unveiling new travel restrictions on certain foreign nationals from eight countries.]

[NEWS CLIP: Where are they gonna go, because they sold everything with the feeling, with the thinking they gonna start a new life in United States.]

[NEWS CLIP: My nephew has been detained since this morning.]

[NEWS CLIP: This is what we want. We want the freedom, we want the liberty. We want the people. We are the people. We the people.]

[NEWS CLIP: But there are many, many lawyers here. They're all working pro bono today. They're from different organizations.]

[NEWS CLIP: This is what resistance looks like today.]

[NEWS CLIP: This sends a message that they can not do away with constitutional protections without people standing up for the Constitution. So, uh, I think this is inspirational, I think it's wonderful, and I think we need to be vigilant, and keep fighting.]

ROBERT: Oh wow. Oh, man. Um, well you know it, it's interesting, its like not only do the courts, you know eventually go back and forth on these deeper questions, so do all of us. And, um, the verdict of history is always going to be a little bit shifting, but eventually you kind of hope that the arc sort of moves just far enough along that you can't go back to far. You can't go all the way back, eventually you get to a better place.

JAD: Yeah.

ROBERT: You get a little bit more perfect.

JAD: Boom. Nice. More Perfect by the way is produced by me, and Suzie Lechtenberg, Jenny Laugthen, the amazing Julia Longoria, Kelly Prime, Sean Ramaswaram, Alex Overington, and Sarah Qari, with Elie Mystal, Christian Ferries, Linda Hershman, David Gabel, and Michelle Harris.

JAD: Special thanks to the Densho Archives for the tape of Fred Korematsu, and Ernest Besig. Supreme Court audio is from Oyez a free law project, and collaboration with the Legal Information Institute of Cornell. Leadership support for More Perfect is provide by the Joyce Foundation. Additional funding is provided by the Charles Evans Hews Memorial Foundation.

JAD: So, yeah I guess I, we should just close. I mean I guess-

ROBERT: Yeah.

JAD: That was the first of it. That was the first episode of, uh, More Perfect, season two. There are already two other episodes in the feed. Um, and there will be many more coming so if you like that, if you want to sort of keep up with it. Definitely go to Radiolab.org/More Perfect, or search for More Perfect on iTunes, or Google Play, or whatever.

JAD: Uh, this season we will be producing a lot more episodes that are way more ambitious. We're just going for it, so tell everybody. Tell everybody it's out. Spread the word.

ROBERT: Yeah, because, uh, it, I don't think there will be a big effort to spread it. I think this is, this is very much of its moment. So, um-

JAD: Yeah, we'll see. Anyhow let's go. I'm Jad Abumrad.

ROBERT: I am Robert Krulwich.

JAD: Thanks for listening.

ROBERT: And thank you for listening. Yes.

-30-

 

Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

 

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of programming is the audio record.