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Earl Warren, Brown, and a Theory of Racial Redemption Sumi K Boston College Third World Law Journal Volume 19 Article 6 Issue 1 The Long Shadow of Korematsu 12-1-1998 Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and a Theory of Racial Redemption Sumi K. Cho Follow this and additional works at: http://lawdigitalcommons.bc.edu/twlj Part of the Civil Rights and Discrimination Commons, Judges Commons, and the Legal History, Theory and Process Commons Recommended Citation Sumi K. Cho, Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and a Theory of Racial Redemption, 19 B.C. Third World L.J. 73 (1998), http://lawdigitalcommons.bc.edu/twlj/ vol19/iss1/6 This Symposium Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. REDEEMING WHITENESS IN THE SHADOW OF INTERNMENT: EARL WARREN, BROWN, AND A THEORY OF RACIAL REDEMPTIONt SUMI CHO* INTRODUCTION Earl Warren is a civil rights/civil liberties icon. During his reign as Chief Justice of the U.S. Supreme Court from 1953-69, the Court set standards of liberal judicial activism on race issues by which future Courts would be judged. Chief Justice Warren presided over momen­ tous decisions that outlawed segregation in public educationl and t © 1998 Sumi Cho. * This work is made possible by a collaborath'e grant from the Civil Liberties Public Educa­ tion Fund ("CLPEF"), of which I am honored to be a part. Eric Yamamoto provided the human bridge between redress/reparations acth'ists and law professors pursuing joint research projects under CLPEF, as a respected member of both constituencies. I also thank my other collaborative members for their indispensable support and feedback: Keith Aoki, Gil Gott, Dean Hashimoto, Chris Iijima, Mari Matsuda, Natsu Saito, and Robert Westley. Joe Singer graciously prodded comments. Steve Siegel and Anthony Miles offered useful feedback on my legal history section. I appreciate Christina Whitman's im'itation to present this paper at the Michigan Legal Theory \\'orkshop and the encouragement I received there. Hohn and Helen Cho were careful readers. I benefited from two excellent sets of research librarians at DePaul and University of l\Iichigan, with particular thanks to Jim Goodridge and Barbara Vaccaro Garavaglia. The staffs at the Bancroft Library at UC Berkeley, the Bancroft Library's Regional Oral History Office, the Cali­ fornia State Archh'es, and the Manuscripts Division of the Library of Congress were most helpful and informative. DePaul's Office of Sponsored Research and Programs facilitated the grant-m'it­ ing and administration process. My law school dean, Teree Foster, generously provided a summer grant for this project. I am indebted to my research assistants, Pamela Alford, Marlo Johnson, and Marty Moore for their meticulous reading of my manuscripts and their Bluebook expertise. GlennisJones-Marshall coordinated outstanding faculty support services throughout this project. Finally, I thank my colleagues in Asian American Studies for my interdisciplinary training that informs this work, especially Ronald Takaki for my early training in Asian Pacific American history and Michael Omi for my understanding of sociological theories of race. I See Brown v. Board of Education (Brown I), 347 U.S. 483 (1954) (declaring separate-but­ equal public education to be unconstitutional). Brown lis the most famous of such cases, in which Warren played a pivotal role in forging a unanimous 9-0 ,'ote by catering to his southern brethren on the bench who were reluctant to "embarrass" the South. See RICHARD KLUGER, SIMPLE JUSTICE 657-99 (1975) [hereinafter KLUGERJ. For examples of other significant ch'il rights cases in which the Warren Court presided, see Green v. County Seh. Bd. of New Kent County, 391 U.S. 430 (1968) (disallowing a "freedom of choice" desegregation plan designed to forestall or subvert integration); Griffin v. County Sch. Bd. ofPrinee Edward County, 377 U.S. 218 (1964) (holding that public school closure in Prince Edward County, Virginia amounted to a denial of equal 40 BOSTON COLLEGE LA. W REVIEW 73 [Symposium public facilities,2 invalidated Jim Crow laws designed to prevent Mrican Americans from exercising the vote3 and found anti-miscegenation laws to be unconstitutiona1.4 President Eisenhower came to regret his wayward Republican appointment,5 and "Superchief' Warren's legacy certainly rivals those of Eisenhower and the other presidents of his era. Warren's tenure, perhaps the most significant since John Marshall's, is understood in overtly political terms as a "revolution in race relations. "G protection); Goss v. Board of Educ., 373 U.S. 683 (1963) (striking a desegregation plan permitting students to transfer to schools in which their race would be a majority as a pretext for maintaining segregation); Cooper v. Aaron, 358 U.S. 1 (1958) (announcing that the Supremacy Clause of the Constitution mandates that state officials desegregate public schools); Board of Trustees of U niv. ofN.C. v. Frasier, 350 U.S. 979 (1956) (pel' curiam) (affirming lower court il~unction to restrain the University of North Carolina from barring admission to undergraduate students because of race); Lucy v. Adams, 350 U.S. 1 (1955) (per curiam) (reinstating il~unction that enjoined and restrained officials at University of Alabama from preventing Autherine Lucy from enrolling); Bolling v. Sharpe, 347 U.S. 497 (1954) (reading an inherent equal protection clause into the 5th Amendment to declare segregated schools in the District of Columbia as violative of the Consti­ tution). See generally ABRAHA~1 L. DAVIS & BARBARA LUCK GRAHAM, THE SUPREME COURT, RACE, AND CIVIL RIGHTS 117-28 (1995) [hereinafter DAVIS & GRAHAM). ~ See \'liatson v. City of Memphis, 373 U.S. 526 (1963) (declaring as void, city ordinances prohibiting integrated use of public parks and recreational facilities); Wright v. Georgia, 373 U.S. 284 (1963) (re\'ersing breach of peace convictions of six Blacks for playing basketball in a segregated park in Savannah, Georgia, and not dispersing upon orders of local police); Boynton v. Virginia, 364 U.S. 454 (1960) (holding that the Interstate Commerce Act prohibited a bus terminal restaurant from refusing service to a Black customer); Gayle v. Browder, 352 U.S. 903 (1956) (striking state statutes and local ordinances requiring segregated motor buses under the Fourteenth Amendment); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (pel' curiam) (striking segregated municipal golf courses as unconstitutional); Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877 (1955) (per curiam) (striking city-maintained segregated public beaches as violative of tl;e Fourteenth Amendment). See generally DAVIS & GRAHAM, supra note I, at 138-46. :l See Gaston Count)' v. United States, 395 U.S. 285 (1969) (prohibiting reinstatement of state literacy test under Voting Rights Act ofl965); Katzenbach v. Morgan, 384 U.S. 641 (1966) (voiding New York election law of English-language reading and m'iting requirement under Section 4(e) of the Voting Rights Act of 1965); Harpel' v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating state poll taxes as a requirement for \'oting in state elections); South Carolina v. Katzenbach, 383 U.S. 30 I (1966) (upholding the Voting Rights Act of 1965 as constitutional under Section 2 of the Fifteenth Amendment); Louisiana v. United States, 380 U.S. 145 (1965) (declar­ ing as unconstitutional state "interpretation tests" that required prospective voters to interpret a section of the state or federal constitution to the satisfaction of the registrar of voters); Tancil v. Woolls, 379 U.S. 19 (1964) (striking Virginia statutes mandating the maintenance of racial lists of YO tel'S and residency certificates); Anderson v. Martin, 375 U.S. 399 (1964) (voiding Louisiana law requiring the race of candidates on ballots); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that racial gerrymandering is unconstitutional). See generally DAVIS & GRAHAM, supra note 1, at 131-38. 4 See Lm'ing v. Virginia, 388 U.S. 1 (1967) (im'alidating Virginia statute prohibiting mixed­ race malTiages). 5 See ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN 337 (1997) (recording Eisen­ hower's comment characterizing his appointment of\'liarren as Chiefjustice as "the biggest damn fool thing I ever did"). 6 MORTON HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 3 (1998). December 1998] 19 B.C. THIRD WORm LAWJOURNAL 73 75 Despite this iconography, there is another less-detailed aspect of Warren's career that looms large in a critical understanding of the Warren Court's race jurisprudence. This aspect predates his work on the Supreme Court, going back to World War II ("WWlI") when War­ ren was Attorney General of California and a gubernatorial candidate in the 1942 elections. During this period, Warren counted himself among California's anti-Asian "native sons and daughters."7 In fact, Warren was a key actor in the anti-Asian movement that culminated in the 1942 internment of over 120,000 persons of Japanese ancestry, two-thirds of whom were United States citizens.8 This Article details Warren's prominent leadership role in advo­ cating for the internment and the repression of that role by Warren scholars. Further, it contemplates the theoretical significance of this self-imposed historical amnesia and re\isionism for civil rights jurispru­ dence. Part I reviews how representative samples of secondary litera­ ture have dealt with Earl Warren's World War II years in California. Part II examines the historical record, focusing on how Warren's po­ litical career intersected with the internment of Japanese Americans. Using archival materials and other sources, Part II concentrates on the following areas: 1) Warren's actions as California Attorney General in response to the bombing of Pearl Harbor; 2) the campaign rhetoric and strategy used during his successful bid for Governor in 1942 and 3) his continued activism against Japanese Californians9 while Gover­ nor.
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