Supreme Court History 2020 vol. 45 no. 2
Melvin I. Urofsky 111 ARTICLES
Fletcher, Whitney, and the Art of Disagreement
Mark R. Killenbeck 113
Chief Justice Melville Weston Fuller and the Great Mustache Debate of 1888
Todd Peppers 140
The Politics of Disabled Supreme Court Justices
Judge Glock 151
Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States
Robert Post 167 Kumezo Kawato and “Justice Court”
Charles J. Sheehan 194 CONTRIBUTORS 207 ILLUSTRATIONS 208
Copyright 2020, by the Supreme Court Historical Society at Opperman House 224 East Capitol Street, N.E.
Washington, D.C. 20003
Kumezo Kawato and “Justice Court”
Among the early acts reported in Volume 317 of the Supreme Court Reports was the December 21, 1942, memorial for the late Justice Louis D. Brandeis. Gathered that morning were leading jurists and members of the Court’s bar. The proceedings were called to order by Solicitor General Charles Fahy. His brief remarks recognized the mem- bers absent, those “called this last year to other tasks and places that need them during the war.”1 Judge Calvert Magruder noted the occasion’s setting “[a]mid the din and distractions of war.”2 Imperial Japan’s fury loosed much of the din. Its baleful reach would deepen the struggle of a middle-aged West Coast working man in the early months of 1942—a story that quietly unfolded in Volume 317.
In 1889, Kumezo Kawato was born in the southeast coast city of Ugui, Japan.3 He arrived as a teenager in the United States in 1905 and settled in the Los Angeles area.4 In April 1940, he took work as a fisherman on the “vessel Rally,” with his wages set as a share of the Rally’s catch.5 On December
CHARLES J. SHEEHAN
4, the Rally was docked and Kawato, in a small skiff alongside (he was five feet one inch),6 was repairing fish nets hanging from the larger vessel. Suddenly, the skiff was “thrown against” the Rally.7 Kawato sustained “severe injuries to his left foot and leg,” a fracture, and a wrenched knee.8 Immediate medical care from a physician and surgeon was required. Four months of incapacitation followed. Having paid his own medical bills, Kawato was now unable to support himself.9
In April 1941, Kawato brought suit against the Rally in federal district court. His attorney was Herbert R. Lande, of nearby San Pedro. Lande had practiced in California since 1934.10 He represented injured seamen, and his sometime opponent in these matters was attorney Lasher Gallagher.11 Kawato sought “wages due” ($387) and “mainte- nance care while ashore” ($264—consisting of $38 in medical expenses and $2 “per day” while unable to work).12 In August, Gallagher answered for the Rally with de- nials both of responsibility and of federal court jurisdiction.13 In a “SEPARATE AND
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 195
Kumezo Kawato was a Japanese-born fisherman who lived on Terminal Island, an enclave of 3,500 Japanese Americans near Los Angeles. Above is a photo of unidentified seamen docked at Terminal Island taken before World War II.
SPECIAL DEFENSE,” he asserted that Kawato was a “citizen and subject of the Emperor of Japan,” and that “no citizen of the United States shall pay any … subject of the said Emperor of Japan.”14
A “Japanese” Seaman
The case of Kawato the seaman was not the first encounter between Lande and Gal- lagher, nor the first in which the two contes- tants over a seaman’s claim found themselves on the docket of federal district court Judge Leon R. Yankwich. In late 1939, Clarence Robinson, an “ordinary seaman,” had fallen ill after “a voyage to the East Coast and return.”15 Robinson, represented by Lande, was unable to work for several months and sued the ship owner, represented by Gal-
lagher, for lost wages and “maintenance” during convalescence. The owner disputed the diagnosis of malaria. Judge Yankwich rendered a brisk and unhesitating decision on May 17, 1940. Declaring “immaterial” the cause of the illness and finding Robinson “unable to work,” he ruled the seaman “en- titled to recover his wages to the end of his voyage.”16 The maintenance claim he treated with the same dispatch and awarded “actual costs.”17
Unlike Robinson, Kawato was no “or- dinary seaman” appearing before Judge Yankwich. The times were far from ordi- nary. Pearl Harbor still smoldered, its horror acutely raw on the Pacific coast, when the Rally sharpened its rhetoric and characterized Kawato as “a Japanese,” with the United States and Japan “at war.”18 Claiming that
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The first- and second-generation Japanese-Americans living at Terminal Island were forced to leave their homes in February 1942 and were given only forty-eight hours to sell their household goods and fishing equipment.
during the “state of war” no “enemy alien has the right to prosecute any action in any court,”19 the Rally moved to “abate” the case.20
Judge Yankwich ordered the action abated on January 20, 1942. He reasoned that the decision of the Supreme Court two weeks earlier, in Ex Parte Colonna,21 which denied access to federal court by the government of Italy, then at war with the United States, extended to all subjects of enemy nations, wherever residing. Kawato’s right to be heard was abated, moreover, “for the duration of the war.”22 Three days later, Lande turned to the Ninth Circuit which, on March 4 and without opinion, backed Judge Yankwich. Twice the courthouse door shut on Kawato.
In the distant Supreme Court lay a fast- expiring final hope. The pervading national fear could hardly have offered odds more dismal to a noncitizen resident alien from a ravaging enemy nation. Such were the predations of Japan that the telling of the
Commission on Wartime Relocation and Internment of Civilians (Commission) four decades later loses none of the dread:
On the same day as Pearl Har- bor, the Japanese struck the Malay Peninsula, Hong Kong, Wake and Midway Islands, and attacked the Philippines, destroying substantial numbers of American aircraft … The next day Thailand was invaded … On December 13 Guam fell, and on Christmas the Japanese occupied Hong Kong. On February 27 the battle of the Java Sea resulted in another American naval defeat with the loss of thirteen Allied ships. In January and February 1942, the military situation in the Pacific was bleak indeed … There was fear of Japanese attacks on the west coast.23
Thousands of American and Filipino men fell during the Bataan Death March
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 197
Kawato was photographed on July 30, 1942 as an internee in Fort Lincoln, North Dakota.
in April 1942. In May, with Corregidor’s surrender, the last American stronghold in the Pacific was lost. The Japanese flag flew in the Aleutian Islands in June, menacing an invasion of North America.
On May 27, Lande sought the Supreme Court’s permission to file a “writ of man- damus” ordering that Judge Yankwich hear Kawato’s case. Ex Parte Colonna denied American courts to “enemy plaintiffs,” Lande argued, including residents living in enemy nations.24 Kawato was neither. He was a “resident enemy alien” living in Los An- geles, not Japan.25 A resident enemy alien “is not disabled from prosecuting a case in our Courts.”26 Lande asked to proceed “on typewritten papers” since Kawato “has no funds or credit with which to pay for the printing of the petitions and briefs.”27
A crack in the federal courthouse door opened with the Court’s per curiam deci- sions on June 8. On a page whose four preceding motions or applications were all “denied” in two or three lines, the eight lines devoted to Ex Parte Kawato drew the lone good news: “Motion for leave to file a petition for writ of mandamus is granted.”28 Granted also was “leave to proceed on typewritten papers.”29 Argument
was set for October 12. Lastly, the Court asked that a new actor join the proceedings. “The Solicitor General is requested to file a brief.”30
Amicus Brief by Solicitor General Charles Fahy
For Solicitor General Fahy, this was not the usual case of a President, federal de- partment, or Congress expecting his defense of executive action or congressional enact- ment. A Japanese-born noncitizen pursuing a private claim against an American business during war with Japan presented singular cir- cumstances. The Supreme Court had signaled no leanings either way in its dry disposition on June 8. The one certainty of Fahy’s brief was that its author was not bound to either side, but was “amicus curiae”—friend of the Court.
Fahy had lately been the first General Counsel of the National Labor Relations Board, bent with all his vigor on advancing the right of the “working man” to a fair field of play in dealing with powerful management forces.31 Five years earlier, it was the Na- tional Labor Relations Act, in five decisions announced on a single day upholding the right of workers to organize and collectively bargain with management, that toppled the Supreme Court wall steadfastly set against New Deal legislation.32
On July 25, Fahy filed his amicus brief in Ex Parte Kumezo Kawato. It was decidedly friendly to this working man’s lone sally against judicial barriers to fair reckoning with his employer. To Judge Yankwich, the Rally had offered “no information or belief” with regard to Kawato’s claims of injury and costs. No findings had been made either way. Such would have been the business of Judge Yankwich had he not “abated” trial. Fahy, however, cast the central fact as established. Kawato “was injured while employed on the fishing boat Rally.”33 Toward Kawato’s reception by the lower court, Fahy’s tone was
198 JOURNAL OF SUPREME COURT HISTORY
Herbert Lande, a California lawyer who represented in- jured seamen, filed this petition for a writ of mandamus in the Supreme Court on May 27, 1941. He asked the Court to compel Southern California district judge Leon R. Yankwich to hear Kawato’s case despite his status as a “Japanese alien.”
stiff. Judge Yankwich had “refused to hear the case.”34
Of Kawato’s race, or birthplace in the nation on a murderous path against Amer- ica, Fahy took no notice. He set the case squarely on the principles of law and values long engrained in Anglo-American tradi- tion. A “person who came to England in time of peace and remained there quietly and without disturbance” was welcome in English courts.35 Even the “resident enemy was present under the protection of the King, and … ‘suing is but a consequential right of protection.’”36 Barring courts to resident aliens benefits no enemy nation, but does inflict “unnecessary hardship” if “such persons were deprived of access to the courts as a means of safeguarding their civil rights.”37
The Supreme Court had never squarely addressed the question, but lower federal and state courts “uniformly adhered” to Fahy’s position.38 Even “during the present war,” three trial courts had initially refused to hear cases brought by enemy alien residents but
“reversed their position … [when] author- ities were called to their attention.”39 As one district court observed, “the contracts of individuals ought not to be affected by the quarrels of nations.”40
Having staked the legal ground, Fahy
turned to the justice, and human toll, of such
treatment of resident enemy aliens as endured
by Kawato at the hands of Judge Yankwich.
“The experience of this country … during the
present war, has demonstrated that the vast
majority of those subjects of countries with
which we are at war who reside here, are
either entirely loyal to our institutions, or at
least unwilling to disobey our laws by giving
aid to the enemy.”41 In America lived some
1,350,000 enemy aliens. “To deprive such
persons … of all access to the courts, might
subject them to extreme hardship without any
“The spirit of justice, upon which our institutions are founded, and the manifest undesirability of forcing innocent persons into want and destitution forbid any such result when not in the least helpful to the effective prosecution of the war.”44
But this was, after all, wartime, with attendant fears of aiding the enemy. Fahy raised and met each. Measures available to government could block judicial recoveries from being sent to the enemy.45 Those sus- pected of disloyalty could be interned, with restrictions placed on their property.46 Ex Parte Colonna was swept aside as holding only that “war suspends the right of en- emy plaintiffs to prosecute actions in our courts.”47 The government of Italy pursuing its case while at war with the United States was “obviously” barred.48 Fahy closed with the ardor of the Attorney General’s earlier statement in January 1942: “no native, citi- zen, or subject of any nation with which the
compensating benefit to the United States.” Culpable parties would escape justice, for “those physically injured (such as [Kawato]) would be unable to recover, although the injury was caused by the willful, reckless or negligent act of another.”43
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 199
The Justices assembled at the White House for their annual visit to President Roosevelt on October 12, 1942, the same day that Ex Parte Kawato was argued. (Left to right) Solicitor General Charles Fahy; Attorney General Francis Biddle; Justices Jackson, Murphy, Douglas, Frankfurter, Reed, Black, and Roberts; and Chief Justice Stone. Fahy filed an amicus brief in Kawato’s case and Black (holding a cigar) wrote the unanimous opinion.
United States is at war and who is resident in the United States is precluded … from suing in federal or state courts.”49
Judge Yankwich’s Views
Leon Yankwich was born in Romania one year before Kawato and reached Amer- ican shores in 1907, two years after him.50 Parallels in their immigrant personal histo- ries, however, awoke no sympathies in the jurist, who rather took Kawato’s challenge to his “abatement” order as a personal affront. Three weeks before argument in the Supreme Court, Judge Yankwich aired his grievances to the Clerk of the Supreme Court.51 There is “no one to whom I can appeal to present my views,” he wrote.52 While he “preferred … public counsel,” such as the United States Attorney, this hope was frustrated by the Solicitor General taking a position “oppo- site” his.53 He “hesitated” to use private
counsel, many of whom appeared before him.54 “Local” counsel might be sought as a “friend of the court,” yet he was loath to “request an attorney to stand the expenditure which representation before the Supreme Court would entail.”55 He apparently as- sumed counsel would shoulder all Court costs.
Yet Judge Yankwich need not have fret- ted at lack of counsel, as within the week he had prevailed on Lasher Gallagher. “At the request of the Honorable Leon R. Yankwich,” Gallagher wrote the Clerk, he would make oral argument and file a brief for the judge.56 Gallagher pressed the same financial straits for Judge Yankwich as Lande for Kawato. “It does not seem that the rules require a judicial officer to pay for … printing,”57 he pled in seeking to submit a typewritten brief.
A late filing from Fahy on October 7 bore striking news. Neither Lande nor Gal- lagher nor Yankwich had ever noted that,
200 JOURNAL OF SUPREME COURT HISTORY
“some months after the court had abated his action,” Kawato had been interned.58 As the Supreme Court characterized Fahy’s supplemental brief, the United States “does not consider that this circumstance alters [Kawato’s] position … in respect to his privilege of access to the courts.”59
Ex Parte Kawato was the first case argued on October 12. Only Gallagher ap- peared, no longer for the now-forgotten Rally but for his new-found second client, and “argued the cause for Leon R. Yankwich, Judge.”60
The Supreme Court Decision
On November 9, 1942, came a unani- mous decision. Authored by Justice Hugo L. Black, it was a paean of mingled sympathy for Kawato and a tribute to the nation so long his home. Few facts particular to Kawato, the man, were known, yet the Court held him aloft, a symbol of the noble, freedom-seeking immigrant.
Did there stir in Justice Black the mem- ory of that other poor man, and the larger cause for which that man stood five months earlier? In Betts vs. Brady,61 Smith Betts, a “farm hand, out of a job and on relief,”62 had a criminal trial but was denied an attorney. In Ex Parte Kawato, the injured, jobless fisherman had an attorney but was denied a trial. Justice Black dissented in Betts, but in Ex Parte Kawato wrote for the whole Court in pressing the keenly held creed to which he had recently given voice in Betts— and would again two decades later in his majority opinion in Gideon: the “promise of our democratic society to provide equal justice under the law,” and society’s “duty” to provide “defence of the poor.”63 Black wrote:
Nothing in [Kawato’s] record indi- cates … that he came to America for any purpose different from that which prompted millions of oth- ers to seek our shores—a chance
to make his home and work in a free country, governed by just laws, which promises equal protection to all who abide by them.64
The injured fisherman embodied the pa- triotic pride of a nation whose “lifeblood came from an immigrant stream.”65 Indeed, many soldiers in the war of 1812 were born in England but fought for America. Immigrants “by the millions … have learned to love the country of their adoption more than the country of their birth.”66
Building on the lineaments of Fahy’s brief, Black embraced British openness to resident enemy aliens “even when the alien is interned, as is petitioner here.”67 He cited Fahy’s authorities that forbidding their access to court “would be repugnant to sound policy, no less than to justice and humanity.”68 He repeated Fahy’s assurances that safeguards could be set to prevent “aid and comfort” to the enemy.69 Like Fahy, he dismissed Ex Parte Colonna as “having no bearing on the rights of resident enemy aliens.70 As Fahy argued, such would be antitheti- cal to the “modern, humane principle” al- lowing their suits to proceed. He closed, echoing Fahy, with the Attorney General’s recent affirmation of resident enemy alien rights.71
Word traveled fast. Two days later a typed letter, addressed to “Mr. Black,” was mailed from Topaz, Utah. The writer, Victor Abe, introduced himself as a “citizen of Japanese ancestry … serving as an evacuee attorney in the Central Utah W.R.A. Project … vitally interest[ed] in the opinion con- cerning Mr. Kawata [sic]… upholding the right of the Japanese alien … to seek justice in the American courts.”72 The decision was “the most encouraging event which has occurred,”73 he continued. Those “confined to project areas” yet seeking to “maintain their faith in American democracy” while “[u]prooted from homes” and “anxiously await[ing] any expression or gesture which
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 201
would encourage them” could at last “see and feel democracy in action.”74 “Could you possibly send a copy of the opinion or a digest of it?”75
Ex Parte Kawato spurred the Depart- ment of Justice. On December 3, Attorney General Francis Biddle instructed all United States Attorneys that the case “establishes … that a resident alien enemy has a right to bring suit in any court and that … there must be no abatement of his action for the duration of the war because of his status.”76 Reaffirming Fahy’s supplemental brief and the Supreme Court’s admonition, the Attorney General took particular care to extend the decision’s far reach. The resident alien enemy “can sue even if interned.”77
One week later, a punctilious Judge Yankwich provided the Clerk of the Court a second letter, shed of comment or complaint. “I have caused … the Opinion to be filed in open court … as is the case with formal mandates,” and “ordered the case restored to the calendar.”78
Kawato’s Internment: “1 suitcase, 1 box, 1 seabag”
The embers suddenly stirred to life by the Supreme Court went quickly cold again. After Judge Yankwich’s sole “abatement” order of January 20, 1942, and despite the Court’s upholding Kawato’s right to sue “even when … interned,” the case would languish without trial until after the war—precisely the span of years that saw the unraveling of Kawato’s life and livelihood.
His home in the early 1940s was Termi- nal Island, a “Japanese community” off Los Angeles described by the Commission as six miles long and a half-mile wide, reachable only by ferry or drawbridge and sustaining a Japanese population of 3,500.79 Half were American-born. The island’s economy cen- tered on canning and fishing. It supported restaurants, groceries, small businesses, and three physicians. The FBI began removing
individuals “considered dangerous aliens” on December 7, 1941.80 By early 1942, the Department of Justice saw to it that “every alien male on Terminal Island who held a fisherman’s license” was sent to an inland camp.81
On February 2, 1942, two weeks after Judge Yankwich abated his case, Kawato’s fortunes turned exceedingly dark. That day he entered the Justice Department internment camp in Lordsburg, New Mexico, near the Mexico border. His “internee report” noted his “fisherman” past and $300 worth of furniture left at 627 Barracuda Street, his Terminal Island residence.82 He surrendered the $73.34 in his possession when the gates closed behind him.83
A period of profound dislocation had commenced. By July, Kawato had been transferred far north to Fort Lincoln, North Dakota, close to the Canada border, where he entered with “1 suitcase, 1 box, 1 seabag.”84 In August, he was back in Lordsburg, where his “internee behavior” was rated “favorable” for “general attitude and cooperativeness with Camp authorities,” as was his “trend of mental condition (despondency, etc.).”85 He weighed 115 pounds.86 In late March 1943, he and scores of internees were moved to a camp on the outskirts of Santa Fe, New Mexico.87 From Lordsburg, Kawato had arrived at Santa Fe with $127.04 “in final settlement.”88 Each month in Santa Fe he received “payroll” in amounts usu- ally ranging between $.80 and $1.60. In July 1943 it reached $24.80.89 One month’s $1.43 earnings were credited to “ditch work.”90
Perhaps the brief cool of the north border suited Kawato more than the desert southwest, for one month after arriving at Santa Fe he “volunteered” for transfer to the internment camp at Kooskia, Idaho, which promised $45 per month for “manual labor” on “road construction.”91 His request was denied. In landlocked Santa Fe, among fifteen hundred mostly Japanese-born internees, the
202 JOURNAL OF SUPREME COURT HISTORY
fisherman would remain, how indefinitely he could not know.
The government held loyalty hearings to decide whether individual internees threat- ened the security of the United States by retaining allegiance to hostile nations. Hear- ings were chaired by a Department of Justice representative assisted by local citizens ap- pointed by the Attorney General. Testimony was taken from the government and the enemy alien.92 Those deemed not loyal to an enemy nation could, a Santa Fe citizen member recollected, be “paroled.”93 At some point Kawato had a loyalty hearing, although whether Kawato was found loyal or not is unknown.94
Back to the Lower Court
A global jolt occurred on September 2, 1945. Japan surrendered. The ripples quick- ened a series of sharp turns in Kawato’s fortunes. His stagnant case against the Rally lurched into motion. During his over three and one-half years’ internment, the district court had quietly continued the case, usually several months at a time. In February 1944, trial had been set for February 1945, then was pushed back until February 1946.95 Sud- denly, four days after Japan’s surrender, the trial date was for the first time accelerated— to October 1945—until it was postponed to March 4, 1946.96
With Japan defeated and the closing of internment camps imminent, there was at last a window. Through it leapt Herbert Lande. Three years to the week after Judge Yankwich restored Kawato’s case to the docket, on November 19, 1945 Lande wrote the Santa Fe camp commanding officer and asked to depose his “Japanese alien” client for his pending lawsuit.97 “We are anxious to have the matter come to trial.”98
Lande requested a camp-supplied no- tary public to depose Kawato with questions submitted by Lande and to record Kawato’s answers.99 An official replied with “regret
that we are not in a position to assist you.”100 Undeterred, on December 17, Lande sought Kawato’s release “so that he might attend the trial of his case,”101 a plea passed to Alien Control Headquarters in Philadelphia. There was no authority to release Kawato, Head- quarters replied on January 5, 1946, but trial arrangements for Kawato could “possibly” be made were Kawato to travel “under guard” and assume “all expenses” for transportation and guard services.102
Unable to meet these terms but spurred by the trial date’s final postponement to March 4, Lande took a final tack. He notified the Rally, on January 10, that a privately retained notary from Santa Fe would de- pose Kawato at camp.103 Lande attached fifteen questions delving into the events and aftermath of December 4, 1940—Kawato’s injuries, medical costs, and loss of earnings. The deposition was set for February 11, 1946.104
Loyal to Japan
On February 27, one week before trial, Lande and Gallagher submitted a joint stip- ulation and order of dismissal. Kumezo Kawato vs. Gas Screw Vessel “Rally,” the lawyers agreed, was “fully settled.”105 The next day, District Court Judge Campbell Beaumont, in three lines, ordered the five- year-old lawsuit “dismissed … each party to bear their own costs.”106 With scarcely a murmur, the aged case, begun by wind or wave flinging Kawato against the Rally’s side half a decade earlier, fought out by Kawato up every rung of the judicial ladder before war, through war, and beyond war, expired. Its terms were shrouded in silence.
Of the Terminal Island fisherman him- self, however, the record was not so obscured. It opened on a life rich in incident and hope. During 1942, Kawato had applied for “repatriation” to Japan while in Lordsburg.107 In Santa Fe, after Japan’s surrender, Kawato again pressed repatriation. Perhaps he yielded
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 203
to the tug of heritage and native soil, now tantalizingly nearer, in assuming a differ- ent name: Shobei Matsubara. In Japan, his typewritten application explained, was Kura Matsubara, his wife. In Japan lived his three children. All were in Ugui.108
His reasons for returning, “uncondition- ally and without qualification,” were plain enough.109 “I feel it is my duty to go back to Japan and support my wife for bring up [sic] the children. At previous hearing I have expressed my loyalty to Japan and I have no intention of changing the same in the future. It is my sincere desire that I be repatriated to Japan as soon as possible.”110 The reviewing official’s signature below Kawato’s testified to the application’s “outstanding merit.”111
On February 28, 1946, the day the case of Kawato vs. Gas Screw Vessel “Rally” was forever dispatched to the closed-case room in the federal courthouse, Kumezo Kawato, or Shobei Matsubara, was a world away. On February 21, 1946, the fifty-seven-year-old fisherman, perhaps for the last time, put out to sea from southern California.112 With other internees bound for their defeated birthplace and home, he likely had Terminal Island in view as he passed through his old waters.
His medical release from Santa Fe had noted “General condition good” and “Duo- denal ulcer-healed.”113 In his pocket was $161.60 in U.S. currency “earned … while interned in the United States,” and the $60 apparently issued to departing internees.114 In July 1945, the FBI had returned Kawato’s property “procured … at the time of his apprehension.”115 He may have again been carrying with him his “1 Buddist pamphlet … 1 card of Baptist Church … 1 Fishermen’s Union retirement card … 1 alien registration card [and] 1 notice to appear in Justice Court.”116
In 1957, Charles Fahy shared his rec- ollections of the case of the Japanese-born
fisherman “barred from our courts” during war with Japan: “I thought this unsound.”117 An aspect of the opinion lingering with special pleasure for Fahy, champion of the working man’s right to fair wages, was Jus- tice Black’s “interesting observation” that English-born men fought for America in the war of 1812.118 “If they could fight for us, the Court seemed to be saying, they could sue in our court for wages.”119 Fahy also pondered the constitutional forces at work during the “din and distractions of war,”120 when the “[e]xecutive and military hold the forward positions, in advance of the legislative and judicial branches of Government.”121 “Yet” to the courts still fall the “peaceful means” to justice—for “a nation draws strength in war as at other times from her legal foundations.”122
Constitutional tension during wartime had also drawn Fahy into another remarkable episode echoing his observation in Kawato, as amicus curiae, that “[t]he experience of this country … has demonstrated that the vast majority of those subjects of countries with which we are at war who reside here, are … entirely loyal to our institutions.”123 Two years to the day after Ex Parte Kawato was argued, Fahy personally presented to the Supreme Court the case for the United States in Ex Parte Endo.124 “Miss [Mit- suye] Endo was a young American citi- zen of Japanese descent” who, while in- terned, “had been cleared individually from a loyalty standpoint.”125 Nonetheless, “she was still held under some restraint of her freedom.”126
To Fahy, the government’s position was deeply unsound. “I thought the executive branch … should abolish the regulations … which continued to hold her.”127 Fahy’s views were resisted. “Contrary to my recommen- dations and judgment it was felt that public acceptance of abolition of the regulations would require Supreme Court decision.”128 But, Fahy was the Solicitor General and, “[b]ecause of the nature and importance of
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the case … it seemed to me that I should present the position of the United States.”129
In the usual cases, Fahy believed, “the United States should … press … vigorously and forcefully.”130 In Endo, however, “there [was] very strong reason” for the Solicitor General not to do so.131 Fahy thus began on an extraordinary note. “I told the Court I could not argue [the case] with the same con- viction as [Korematsu], in which the Court upheld the exclusion of Japanese Americans from the West Coast in 1944.”132 But “I wished to present the matter as fairly and fully as I could from the standpoint of the government.”133 Hardly had he commenced when headwinds hit. “Chief Justice Stone immediately indicated grave uncertainty, to put it mildly, about the government keeping any restraints on Miss Endo, a citizen who had been cleared from a loyalty standpoint. … [The Chief Justice] … went after me about it. I thought to myself, ‘Well, I wish you could get after some of those whom I’ve been trying to get to clear this matter up without even bothering you about it’.”134 The Court reversed, holding that the government could not continue to detain a citizen who was “concededly loyal” to the United States.
The constitutional storms of the intern- ment era saw few doughtier contestants than resident enemy alien Kumezo Kawato. With no capital but Herbert Lande’s unending pluck and a congenial spirit in Charles Fahy, he clamored at the gate of every “Justice Court” set before him, even through barbed wire. With years of legal fees sunk in de- fense and trial one week out, perhaps also tucked in Kawato’s pocket as he steamed homeward, and the familiar shore was lost to sight, was the litigant’s partial justice—dearly won wages and expenses paid out by the Rally.
If so, his case and his life, both long and much “abated,” stood in some small measure restored.
1 “Proceedings in Memory of Mr. Justice Brandeis”, 317 U.S. ix, ix (1942).
2 Ibid., p.x.
3 Immigration and Naturalization Service, Internment Camp, Santa Fe (March 18, 1944), National Archives & Records Administration (NARA), Washington DC, Record Group 85, Box 14 (NARA Box 14). NARA Box 14 consists of internment forms and documents pertain- ing to Kumezo Kawato, without order or pagination.
4 Internee Report, Lordsburg Internment Camp (Febru- ary 2, 1942), NARA Box 14.
5 Kumezo Kawato v. Gas Screw Vessel “RALLY” (Kawato), Complaint in Admiralty, Libel in Rem, 2 (S.D. Cal. April 15, 1941), National Archives & Records Administration, Washington DC, Record Group 267, Box 407 (NARA Box 407). NARA Box 407 consists of judicial filings and other documents associated with Kawato’s Supreme Court litigation, including filings in the lower federal courts attached to his Supreme Court pleadings. They are also without order or pagination.
6 Internee Report (March 23, 1943), NARA Box 14.
7 Kawato, Complaint in Admiralty, 3, NARA Box 407. 8 Ibid.
10 Kumezo Kawato v. Leon Yankwich (Kawato v. Yankwich), Motion of Herbert R. Lande for Permission to Appear Before the Supreme Court of the United States, 2 (undated), NARA Box 407.
11 For example, Burke v. W.R. Chamberlin & Co., 51 Cal. App. 2d 421, 422 (1942) (seaman working on steamship moored in Los Angeles harbor injured by “timber … catapulted from the dock”). Gallagher represented the steamship and Lande the seaman.
12 Kawato, Complaint in Admiralty, 3, NARA Box 407. 13 Kawato, Answer to Libel, 1–3 (August 12, 1941), NARA Box 407.
14 Id., p. 6 (upper case in original).
15 Robinson v. Swayne & Hoyt, 33 F. Supp. 93, 94 (S.D. Cal. 1940).
16 Id., p. 95.
17 Id., p. 96.
18 Kawato, Claimant’s Motion to Abate Action, 1 (Jan- uary 19, 1942), NARA Box 407.
21 314 U.S. 510 (1942).
22 Kawato, Minute Order (January 20, 1942), NARA Box 407.
23 Report of Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Com- mission Report), Summary, at 2, (Government Printing Office, Washington DC, 1982)
KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 205
24 Kawato v. Yankwich, Brief of Petitioner in Support of Petition for Writ of Mandamus, 6 (No. ___ U.S. May 27, 1942), NARA Box 407.
25 Ibid., p. 4 (emphasis in original).
27 Kawato v. Yankwich, Motion for Leave to File Typewritten Papers, 1 (June 2, 1942), NARA Box 407.
28 316 U.S. 650 (1942) (per curiam).
31 Memoirs of Charles Fahy, Columbia University Oral History Project Collection (1958), 118 (available at website for The Historical Society of the District of Columbia Circuit) (Fahy Oral History).
32 For example, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
33 Ex Parte Kumezo Kawato, Brief of the United States as Amicus Curiae (No. 10, Original July 25, 1942), 2 (signed also by Robert L. Stern and Carl J. Schuck) (Amicus Brief).
35 Id., p. 5.
36 Id., p. 6.
37 Id., pp. 6–7.
38 Id., p. 8.
39 Id., pp. 8–9.
40 Id., p. 8n11.
41 Id., p. 10.
44 Id., p. 11.
45 Id., p. 18.
46 Id., p. 18–19.
48 Id., p. 7n7.
49 Id., pp. 22–23.
50 Leon Yankwich, “U.S. Judge, Is Dead,” New York Times, February 12, 1975, 40.
51 Letter from Leon R. Yankwich to Charles E. Cropley, September 18, 1942, NARA Box 407.
56 Letter from Lasher B. Gallagher to Charles E. Crop- ley, September 24, 1942, NARA Box 407.
58 Ex Parte Kumezo Kawato, 317 U.S. 69, 73 n.3 (1942). Fahy’s supplemental brief has been lost. A cover letter (NARA Box 407) from Fahy testifies to its being filed on October 7, 1942, and the Supreme Court decision noted its position, but the brief is not in the possession of the NARA, the Library of Congress, the Supreme Court or the Department of Justice (Office of the Solicitor
General and Justice Management Division (overseeing main library)).
60 Id., p. 70.
61 616 U.S. 455 (1942), overruled by Gideon v. Wain- wright, 372 U.S. 335 (1963).
62 Ibid., p. 474 (Black, J., dissenting).
63 Id., p. 477.
64 Ex Parte Kawato, 71. 65 Ibid., p. 73.
68 Id., p. 74.
69 Id., p. 75.
70 Id., p. 75n7.
71 Id., p. 77n13.
72 Letter from Victor Abe to Mr. Black, November 11, 1942, in Hugo L. Black Papers, Library of Congress, Manuscript Division, Washington DC, Box 269. The “War Relocation Authority” was the federal agency established to manage the internment program.
76 Circular No. 3763, To All United States Attorneys, from Francis Biddle, Attorney General (December 3, 1942), NARA Box 407.
78 Letter from Judge Leon Yankwich to Charles E. Cropley, November 16, 1942, NARA Box 407.
79 Commission Report, 106.
82 Internee Report, Lordsburg Internment Camp (Febru- ary 2, 1942), NARA Box 14.
84 Personal [Property] Receipt (July 6, 1942), NARA Box 14.
85 “Information on Internee Behavior” Memorandum (March 16, 1943), NARA Box 14.
86 Internee Report (March 24, 1943), NARA Box 14.
87 Lordsburg Internment Camp, Special Order No. 66 (March 22, 1943), NARA Box 14.
88 Immigration and Naturalization Service Receipt (May 25, 1943), NARA Box 14.
89 Immigration and Naturalization Service Receipt (July 27, 1943), NARA Box 14.
90 Immigration and Naturalization Service Receipt (De- cember 12, 1943), NARA Box 14.
91 Japanese Enemy Alien Volunteers for Transfer to Alien Detention Camp (April 23, 1943), NARA Box 14.
92 Daniel T. Kelly, The Buffalo Head: A Century of Mercantile Pioneering in the Southwest (New Mexico: Vergara Publishing Company, 1972), 217–218, 220–221.
206 JOURNAL OF SUPREME COURT HISTORY
93 Ibid., p. 219.
94 Application for Repatriation (September 9, 1945) (referring to “previous [loyalty] hearing”), NARA Box 14.
95 NARA, Riverside, CA Archives (containing 1942– 1946, post-Supreme Court Kawato federal district court filings — mostly brief letters from the Clerk of the Court to Herbert R. Lande continuing the previous trial date. The documents are unordered, not contained in a numbered box and are referred to as “Riverside Archives.”
96 Letter from Edmund Smith, Clerk, to Herbert R. Lande (September 6, 1945); Letter from Edmund Smith, Clerk, to Herbert R. Lande (October 2, 1945), Riverside Archives.
97 Letter from Herbert R. Lande to Officer in Charge, Santa Fe Internment Camp (November 19, 1945), NARA Box 14.
100 Letter from Abner Schreiber to Herbert R. Lande (November 28, 1945), NARA Box 14.
101 Letter from Herbert R. Lande to Officer in Charge, Santa Fe Internment Camp (December 17, 1945), NARA Box 14.
102 Letter from W.F. Kelly to Herbert R. Lande (January 5, 1946), NARA Box 14.
103 Notice of Time and Place of Taking Deposition on Written Interrogatories (January 10, 1946), Riverside Archives.
105 Kawato, Stipulation and Order of Dismissal (Febru- ary 27, 1946), Riverside Archives.
106 Kawato, Order (February 28, 1946), Riverside Archives.
107 Petition for Reuniting Family in Family Internment Camp (December 9, 1942) (Kawato declined “family internment” and listed no family members, but elsewhere in the petition stated: “I have … applied for repatria- tion”). NARA Box 14.
108 Application for Repatriation (September 21, 1945), NARA Box 14.
112 List of Repatriated Japanese Enemy Aliens (includ- ing earlier dates of repatriation) (April 12, 1946), NARA Box 14.
113 Medical Certificate (Santa Fe, NM) (February 11, 1946), NARA Box 14.
114 Certification, Santa Fe Internment Camp (January 31, 1946), NARA Box 14.
115 Federal Bureau of Investigation (Los Angeles) letter to Officer in Charge, Santa Fe Camp (July 5, 1945), NARA Box 14.
117 The Supreme Court in World War II (Annual Banquet of Institute of Military Law, May 5, 1957), 3, Charles Fahy Papers, Library of Congress, Manuscript Division, Washington DC, Box 8.
120 “Proceedings in Memory of Mr. Justice Brandeis,” at x.
121 The Supreme Court in World War II, 1.
123 Amicus Brief at 10.
124 323 U.S. 283 (1944).
125 Fahy Oral History at 149.
130 Id., p. 150.
132 Id. p. 149. See also Editorial, Unique Judge (Whis- pering Charlie), New York Times, Sept. 18, 1979. “One dramatic day he announced in court that he could defend ‘with conviction’ only portions of the Government’s program of [internment].”
134 Id., p. 179.