Ex parte Mitsuye Endo (1944)

The Endo case came about as part of a complex set of circumstances. At the time of Pearl Harbor, Mitsuye Endo was a 22-year-old clerical worker for the California Department of Motor Vehicles based in Sacramento, one the few Nisei who had been able to secure a state job at a time when occupational discrimination against Japanese Americans was severe. In the hysteria following the U.S. entry into war against Japan, Endo was among those Nisei state workers first harassed, then eventually fired from their jobs because of their racial ancestry. In the face of this injustice, Saburo Kido , a lawyer and president of the Japanese American Citizens League (JACL), vowed to assist them. He asked his friend, James Purcell , a San Francisco-based attorney, to help, which Purcell agreed to do without fee. The mass exclusion and detention of Japanese Americans on the West Coast beginning in the spring of 1942 added to the difficulty of the task. Purcell decided to file a habeas corpus petition, challenging the exclusion of Japanese Americans that made it impossible for the fired Nisei employees to return to their jobs. Purcell sought to increase the odds of success by bringing a test case on behalf of a Nisei who was Christian, had never been to Japan, and could neither speak nor read Japanese. He found Endo, who was then being held at the Sacramento Assembly Center . Endo was an ideal client for such purposes since she met all these conditions, and in addition had a brother in the U.S. Army. Purcell settled on Endo without actually meeting her, based on her profile. Endo agreed to serve as the test case. In addition to her own employment, she recognized the need to defend the rights of the larger group.

On July 13, 1942, by which time Mitsuye Endo had been moved to the Tule Lake WRA camp, Purcell filed the habeas corpus petition seeking her release. The petition argued that her detention had deprived her of the right to report to work as a state employee, and that Public Law 503 did not allow military officials to order detention of American citizens. He further claimed that her detention was "undeclared martial law" since she had been detained without trial despite the fact that the courts were functioning. Purcell's petition was supported by the American Civil Liberties Union and other liberal groups. Similarly, Kido and the JACL quickly announced their support for Endo's case. Unlike the challenges to Executive Order 9066 such as those by Gordon Hirabayashi and Fred Korematsu , Endo's case did not involve a challenge to the initial removal, which the JACL considered useless and harmful, but rather centered on the matter of arbitrary confinement and permanent civil rights.

In July 1942, Endo's habeas corpus petition was argued in San Francisco before Judge Michael J. Roche, the Irish-born Californian who would later gain notoriety as the judge in the Iva Toguri "Tokyo Rose" trial. Although a habeas corpus petition is normally treated on an expedited basis, Judge Roche failed to act on it for over one year following the hearing, presumably awaiting guidance from the U.S. Supreme Court, during which time Endo remained arbitrarily confined at the Tule Lake camp. While at Tule Lake, Endo filled out a leave clearance form, as the WRA demanded of all adult inmates. Finally, in July 1943, after the Supreme Court decisions in the Hirabayashi and Yasui cases were issued, Roche issued an order summarily dismissing Endo's petition, first on the grounds that Endo's petition did not present a valid claim of unlawful detention, and secondly on the argument that Endo had failed to exhaust her administrative remedies as a precondition to release from the Tule Lake camp.

On August 26, 1943, Purcell appealed Endo's case to the U.S. Court of Appeals for the 9th Circuit. Meanwhile, as part of the exchange of inmates from Tule Lake adjudged "loyal" who were sent to other camps when Tule Lake was remade into a segregation center for those deemed "disloyal," Endo was transferred to the Topaz camp in Utah. The move left the status of her case uncertain, since she was technically no longer within the jurisdiction of the California court. Although national ACLU leaders agreed with Judge Roche that Endo should secure release from confinement through the leave clearance program, and encouraged Purcell to drop the appeal, government lawyers recognized that they had little chance of prevailing on appeal, especially since Endo had been adjudged "loyal" on the basis of her leave clearance form and was eligible for release. Government officials nevertheless feared the consequences of opening the camps and allowing inmates to return to the West Coast. Thus, the War Relocation Authority's chief attorney, Solicitor Philip Glick, traveled to see Endo and offered her an immediate "leave permit" to resettle outside the West Coast if she would abandon the case. Endo realized, however, that so long as she remained barred from the West Coast excluded zone, she would be unable to return to her job, the ostensible point of her habeas corpus petition. Endo thus refused to abandon the case, even though it meant remaining in confinement while her appeal was perfected.

In March 1944, even as the 9th Circuit prepared to hear Endo's appeal, the Supreme Court agreed to hear the Korematsu case, which involved the initial removal and exclusion of Japanese Americans from the West Coast. James Purcell and the ACLU lawyers defending the Korematsu case believed that having the two cases argued together would strengthen the case against Executive Order 9066, especially as they both sought the lifting of West Coast exclusion as a remedy. 9th Circuit Appellate Judge William Denman, who hoped to resolve the Endo petition, certified questions for the Supreme Court on it so that the matter could be brought directly to the high court, before the justices' summer recess. However, instead of hastening action in Endo (which had already been prolonged far longer than a normal habeas corpus petition), the justices decided to put off argument on Korematsu until its Fall 1944 term and hear both cases at the same time. This delay offered the justices a pretext for postponing consideration of the Japanese American cases until after the 1944 presidential election.

In October 1944, the Endo and Korematsu cases were both argued before the U.S. Supreme Court. On December 18, 1944—also the same day as it announced its ruling in the Korematsu case—the Supreme Court unanimously decided in Endo's favor. The opinion, authored by Justice William O. Douglas, began:

We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detail other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure.

In the interests of obtaining a unanimous ruling, and thereby achieving the immediate objective of permitting Japanese Americans to leave confinement, the Supreme Court evaded all constitutional questions regarding the constitutionality of excluding and incarcerating Japanese Americans—the justices did not even pronounce on the question of whether Mitsuye Endo could return to California and fight her dismissal. Douglas took the position that nothing in Executive Order 9066 or Public Law 503 had provided authority for detention of citizens, and that the WRA had thereby exceeded its authority by pursuing mass confinement—in essence positing that the WRA had acted as a rogue agency within the government. In a concurrence, Justice Owen Roberts (who had dissented in the Korematsu case) underlined the absurdity of Douglas's reasoning by pointing out that the President had offered support for mass incarceration in his messages to Congress, and Congress had funded the agency. Justice Frank Murphy added his own concurrence, in which he asserted that the mass confinement the court struck down in Endo was inextricably connected to the mass removal that the Court simultaneously upheld in Korematsu .

The Court's unanimous ruling in Endo was decisive in the opening of the camps, as it both required the War Department to lift exclusion and provided political cover for such action. Having been tipped off in advance regarding the decision, the Roosevelt administration issued Public Proclamation 21 the day before the Endo ruling, rescinding the exclusion orders. Thus, on January 2, 1945, two weeks after the decision, the War Department formally lifted the exclusion of Japanese Americans from the West Coast. The ruling made it possible for the WRA to announce that the camps (with the exception of the "segregation center" at Tule Lake) would be shut down over the course of that year.

The legacy of the Endo decision forms part of a paradox, particularly in its relation to the Korematsu case decided the same day. By the time it was decided, Korematsu was entirely backward-looking in regard to policy, and had little or no actual influence on the circumstances of confined Japanese Americans—indeed it is arguable that its very lack of impact on the immediate situation made it possible for the Court to rule as it did. Nevertheless, Korematsu has achieved classic status in the history of American constitutional law. Conversely, as mentioned, the Endo case did not touch on the larger issues of mass incarceration of American citizens on a racial basis, but by bringing about the end of exclusion it had a vital impact on the lives of confined Japanese Americans. As a result, it has been somewhat forgotten in American constitutional law, and has seldom been cited as authority in the Court's subsequent opinions (though it did figure in Justice Anthony Kennedy's concurrence in the Supreme Court's landmark 2004 Padilla case). Conversely, as the first real Supreme Court victory of Japanese Americans against discrimination, it prefigured a whole series of postwar cases striking down racist state laws, and was referred to as precedent in a multitude of petitioner and amicus briefs in civil rights cases, most notably the NAACP briefs in the epochal 1954 Brown v. Board of Education School desegregation cases. In a further irony, even after her long-sought victory, Mitsuye Endo (later Mitsuye Tsutsumi) did not return to the West Coast, and was not able to obtain court-ordered compensation for losing her job. Instead, she settled permanently in Chicago, where she took a job as an assistant to the city's Human Rights Commission and raised a family. She died in May 2006.

In the decades after her case was decided, Endo remained a private person and did not participate in the Japanese American redress movement (although she did produce a short oral history for John Tateishi's 1983 anthology And Justice for All ). While some Japanese American activists called for Mitsuye Endo to be awarded the Presidential Medal of Freedom, as had her fellow wartime plaintiffs, no such recognition was forthcoming. However, she demonstrated enormous courage and dedication to the rights of an entire group of Japanese Americans, first by agreeing to stand as plaintiff, and then by her insistence on refusing the offer of a leave permit for which she was eligible, and remaining in confinement for 18 months to ensure that her case was heard.

Ex Parte Mitsuye Endo, 323 U.S. 283 (1944) case transcript, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=323&invol=283 .

Bangarth, Stephanie. Voices Raised in Protest: Defending Citizens of Japanese Ancestry in North America, 1942–49 . Vancouver: UBC Press, 2008.

Gudridge, Patrick O. "Remember Endo?" Harvard Law Review 116 (2003): 1933–70.

Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases . New York: Oxford University Press, 1983. Berkeley: University of California Press, 1993.

Kang, Jerry. "Denying Prejudice: Internment, Redress, and Denial." UCLA Law Review 51.4 (2004): 933–1013.

Muller, Eric. "Commemorating the Life of Mitsuye Endo, A Quiet Civil Rights Hero." Is That Legal? blog. [Includes links to articles by Greg Robinson, Patrick Gudridge, and Jerry Kang.]

Robinson, Greg. "Mitsuye Endo: plus grand dans son obscurité?" In The Great Unknown: Japanese American Sketches by Greg Robinson. Boulder: University Press of Colorado, 2016. 95–96.