Of Loaded Weapons and Legal Alchemy, Great Cases and Bad(?) Law: Korematsu and Strict Scrutiny, 1944-2017

Dewey, Scott H.
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Scott H. Dewey, Of Loaded Weapons and Legal Alchemy, Great Cases and Bad Law: Korematsu and Strict Scrutiny, 1944-2017, 3 Legal Info. Rev. 43 (2017-2018).
This article traces in detail how dicta in the wartime Japanese American internment cases of Korematsu v. United States and Hira bayashi v. United States was taken out of context and gradually transmuted, through a process of legal alchemy or "precedent laundering, " into holdings supporting the postwar strict scrutiny doctrine regarding equal protection under the Fifth and Fourteenth Amendments. The article addresses the complex, twisted prehistory of Korematsu, which includes the troubled Japanese American immigrant experience leading up to the internment and the growing interwar geopolitical rivalry between Japan and the United States over domination of the Asia/Pacific region. This prehistory helps illustrate why Korematsu was a Holmesian "great" case doomed to make "bad" law that was inapplicable in more normal legal situations and peacetime conditions. Although postwar discussion of the internment cases often tends to largely leave out or ignore the Second World War and the wider geopolitical context leading up to it, this article contends that such selective amputation of the necessary historical context is legally and intellectually questionable. The language from Korematsu and Hirabayashi, used briefly as a convenient if ultimately unnecessary judicial shortcut to help strike down de jure racial segregation and discrimination in the 1960s, ironically later has served primarily as a reliable tool-the "colorblind straitjacket" for rejecting most efforts to address continuing de facto discrimination and structural racism. The irony is compounded because the dicta in question come from cases that were not primarily concerned with race as the concept has been commonly understood throughout the postwar era, but with national origin in the context of war, at which time national origin, citizenship, and loyalty necessarily matter more than usual. Yet because the wartime internment cases referred to "race" in an already out-of-date, prewar sense, they later were interpreted to be discussing "race" in the postwar sense. This terminological confusion was only partly corrected starting in the 1970s. It is also perhaps ironic that any language from opinions later rejected as tragic mistakes, even legal national disasters, should have gained, and retained, the status of legal orthodoxy. The whole muddled process reveals how, through the bending of dicta into holdings, the judiciary can fashion for itself exactly the sort of dangerous and unpredictable "loaded weapon, allowing and encouraging future overreaching by authority, that Justice Jackson warned of regarding the executive branch in Korematsu Although legal scholarship and court opinions have generally accepted the overall results of the ready taking of Korematsu's dicta out of context, this article seeks to appropriately "re-problematize" Korematsu and its lineage historically, legally, and linguistically as fundamental violations of the rules of precedent and stare decisis-the sorts of practices that may call judicial and jurisprudential legitimacy into question. The article also reflects on why such practices continue even when, in theory, the legal community should know better.