Keywords
Supreme Court, racial classifications, legal process, legal decision-making
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 thelaw 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.”
Recommended Citation
Jack M. Balkin,
Korematsu as the Tribute that Vice Pays to Virtue,
74 Ark. L. Rev.
255
(2021).
Available at:
https://scholarworks.uark.edu/alr/vol74/iss2/3
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Fourteenth Amendment Commons, Law and Race Commons, Law and Society Commons, Supreme Court of the United States Commons