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June 24, 2013


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Eric, really? How about this quote, no hint of disapproval: "If a statute is subject to strict scrutiny, the statute**2570 always, or nearly always, see Korematsu v. United States,FN1 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), is struck down." That's Justice Marshall in 1976. Also ugly?

How about this quote, for Justice Brennan's opinion in Bakke? Unlike Thomas, who just cites the opinion as establishing strict scrutiny, this one actually uses Korematsu and Hirabayashi to Justice the Justice's position? If Thomas's opinion was ugly, what does that say about Brennan's? Paradoxically, petitioner's argument is supported by the cases generally thought to establish the “strict scrutiny” standard in race cases, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). In Hirabayashi, for example, the Court, responding to a claim that a racial classification was rational, sustained a racial classification solely on the basis of a conclusion in the double negative that it could not say that facts which might have been available “could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States.” Hirabayashi, 320 U.S., at 101, 63 S.Ct., at 1386. A similar mode of analysis was followed in Korematsu, see 323 U.S., at 224, 65 S.Ct., at 197, even though the Court stated there that racial classifications were “immediately suspect” and should be subject to “the most rigid scrutiny.” Id., at 216, 65 S.Ct., at 194.

Eric Muller

Oh, Lurkinglawprof, what is with the anonymity? So tiresome. So very tiresome.

I have no trouble calling anyone's citation of Korematsu and Hirabayashi ugly, including Brennan's and Marshall's.

For what it's worth, though, the citations are not entirely comparable. There's a big difference between 1976 and 2004/2013.

In 1976, neither Korematsu nor Hirabayashi had been discredited by the revelation of archival records demonstrating Justice Department misrepresentations to the Court in the Japanese American cases. That wouldn't happen until the early 80s.

In 1976, federal courts had not yet considered or issued writs of error coram nobis wiping away Hirabayashi's and Korematsu's convictions. That wouldn't happen until a bit later than the revelation of the Solicitor General's misconduct.

In 1976, the Congress had not yet launched the blue-ribbon-panel inquiry that would conclude that the removal and imprisonment of Japanese Americans was a product of racism, hysteria, and failed leadership.

In 1976, neither Congress nor the President had apologized for the removal and imprisonment of Japanese Americans or issued redress checks.

In 1976, Antonin Scalia had not publicly compared Korematsu to Dred Scott v. Sanford.

So yes, Korematsu and Hirabayashi are tragic ratifications of racism and citing them is ugly. But it's a hell of a lot uglier now than it was in 1976.

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