REMEMBER KOREMATSU?

Writen by Susan H. Kamei

You might be familiar with Korematsu v. United States (1944) 323 U.S. 214, as the Supreme Court case often cited for establishing the "strict scrutiny" standard of judicial review. Depending on where you went to law school, you might also have learned how, in that case, the Court justified the forcible removal of persons of Japanese ancestry from the west coast during World War II as a "military necessity," and how, in the 80 years since it was decided, that case has come to be ranked among the worst Supreme Court decisions in history.

What you might not know is that the Korematsu court did not actually apply any judicial review to the Roosevelt administration’s wartime actions. Moreover, when given the opportunity to repudiate Korematsu, the Roberts court in its 2018 Trump v. Hawaii (2018) 585 U.S. 667, decision repeated what the Korematsu court did in saying one thing but doing another. After declaring that Korematsu was "overruled," the Court then doubled down on the Korematsu logic and result, affirming broad judicial deference to the executive branch when it asserts the protection of national security interests without justification and even when those actions have discriminatory motivations and impact.

Confused? No wonder. There’s more to this convoluted Korematsu legacy than what gets described, often erroneously, in sound bites and blog posts, and there’s more to the individual whose name has come to be associated with this difficult history.