Korematsu as the Tribute that Vice Pays to Virtue

JB

I've uploaded a draft of a recent article, Korematsu as the Tribute that Vice Pays to Virtue, to SSRN. This short piece is part of a symposium on Mark Killenbeck's recent attempt to rehabilitate aspects of Korematsu v. United States by focusing on the failures of lawyering in that case. Here is the abstract:

This essay responds to Mark Killenbeck's argument for partially rehabilitating Korematsu v. United States, the infamous Japanese Internment Case. Killenbeck argues that Korematsu deserves credit for announcing the doctrine of strict scrutiny for racial classifications, and that we should criticize the case because of serious defects in the Supreme Court's decisional process, which he details at length.

The quality of the decision making process in a Supreme Court case has very little to do with how a case is viewed by later generations, which are more concerned with what a case did and whether it was just or unjust from the standpoint of the present. The constitutional canon (and anticanon) are constructed by cultural memory, and cultural memory is largely indifferent to, if not ignorant of, the criteria of good professional lawyering that Killenbeck is most concerned with. The central reason why Korematsu is anticanonical today is that the Court reached a deeply unjust result of which later generations are ashamed.

Korematsu also deserves no credit for announcing the doctrine of strict scrutiny in racial classifications. First, as a threshold matter, because the test of strict scrutiny treats classification by the state as both the central vice of White Supremacy and the chief mechanism of contemporary racial injustice, the doctrine's limitations have done as much to ignore or perpetuate racial injustice as to remedy it. Second, Korematsu should get no credit for merely mouthing the words of strict scrutiny but doing nothing to effectuate them. The argument assumes that Korematsu's hypocritical pronouncement somehow caused later courts to adopt the doctrine and apply it in a just fashion. But it is far more likely that courts began to protect racial minorities for different reasons, and simply cribbed convenient language from Korematsu and Hirabayashi v. United States. Courts were making lemonade from lemons, as courts often do. Moreover, there were plenty of other sources of Supreme Court doctrine that would have done just as well.

Good legal decision-making, however desirable, is not the same thing as justice. And, for better and for worse, what we tend to remember years later about the work of courts — if we remember it at all — is not judges’ professional skill, their attention to the factual record of cases, their scrupulousness about procedural niceties, and their devotion to craft. Rather, it is whether, in the eyes of later generations, they did justice in their time.