Document Type

Court Brief

Publication Date

4-11-2025

Abstract

Introduction

When Fred Korematsu stood in the San Francisco federal district court in 1942 to challenge the constitutionality of a criminal charge that he had violated an exclusion order issued pursuant to Executive Order 9066, he was represented by pro bono counsel funded by the San Francisco office of the American Civil Liberties Union (ACLU). But just four days after Fred’s attorneys filed a motion to dismiss his criminal charges, ACLU director Roger Baldwin—wanting to avoid angering President Roosevelt—conveyed the “national board’s decision to prohibit test cases from challenging Roosevelt’s authority to issue Executive Order 9066.” Instead, local ACLU affiliates could “only argue that [General] DeWitt’s orders were arbitrary because they did not except individuals who were loyal, they covered too wide an area, and they unlawfully discriminated against Japanese Americans.” For cases already filed, the national board “advised defendants … ‘to arrange, if they desire, for counsel who will be free to raise other constitutional issues.’”

In defiance of national ACLU’s orders, Fred’s pro bono counsel appealed his conviction, continuing to argue that the forced exclusion from their homes and incarceration of Japanese Americans in camps were unlawful exercises of executive power: “We undertook to defend Korematsu and we informed him before he accepted our help that in the event he was convicted, we would undertake an appeal, if necessary, because we regarded his as a test case.” Though the Supreme Court ruled against him in 1944, Korematsu v. United States, 323 U.S. 214 (1944), pro bono counsel again raised the failure of justice in his case in 1984—and this time, a federal court agreed, overturning Fred’s wartime conviction, Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). The Supreme Court finally recognized this failure of justice when Chief Justice Roberts, in Trump v. Hawaii, declared that Korematsu had been overruled in the court of history, and that the Government’s treatment of Fred had been “gravely wrong.” 585 U.S. 667, 710 (2018).

Like Fred, countless others have depended on pro bono counsel to defend their constitutional rights. But President Trump’s recent Executive Orders targeting Wilmer Cutler Pickering Hale and Dorr (“WilmerHale”) and other law firms, Executive Orders 14230 (the “Perkins EO”), 14246 (the “Jenner EO”), and 14250 (the “WilmerHale EO”) (collectively, the “EOs”), aim to curtail firms’ pro bono work when it conflicts with the Administration’s policy goals. This violates the First Amendment rights of the firms and their clients. As the Supreme Court recently and unanimously held, “[a] government official can share her views freely and criticize particular beliefs . . . . What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024).

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