Korematsu as the Tribute That Vice Pays to Virtue

Abstract

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court's most despised legal decisions, Korematsu v. United States.' He argues that "[w]e should accept and teach Korematsu as an exemplar of what the law regarding invidious discrimination on the basis of race, ethnicity, and national origin should be." In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But "[t]he majority," Killenbeck explains, "refused to heed their own mandate. In Hirabayashi they held that the government policy was 'reasonable.' In Korematsu, . . . they failed to actually utilize" strict scrutiny. "In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents."

But the fact that the Court failed at its institutional duty, Killenbeck argues, should not detract from the importance of its doctrinal achievement-the first announcement that courts should apply strict scrutiny to racial classifications. At the same time, he insists, we should be deeply concerned about the quality of the legal decision making that sits beneath a precedent. That, he asserts, is the real problem with Korematsu, and he spends many pages digging into the history to show how bad the decision-making process really was.

Suppose, Killenbeck asks us to imagine, that we discovered that the Court's work in Brown, Roe, or Grutter, rested on suppressed or fabricated facts, or misconduct by the litigants or the Justices. Perhaps, he suggests, we might now treat these cases as "infamous."" In Korematsu, Killenbeck argues, "the Court was led down the primrose path by a record that was both incomplete and deceptive. Korematsu's place in the anticanon is based in significant part on these realities. What other cases might we add to that roll of infamy if similar misconduct by the responsible agency or individuals had infected the decision making process?"