The difference between security and scapegoating should be fairly easy to tell apart and in this case it is extremely easy to see the difference and the issues with the Court's reasoning. However, we are looking at this case more than 80 years later. The world has changed a lot and has become much more accepting of diversity than it was. We also are not facing direct attacks in our country during a time of world war. The Court did not do the job it was supposed to do when it made the decision in this case. It did the job the military and president wanted it do. Instead of being fair and neutral in times of fear, they caved under the pressure of not undermining the President's and military's decisions on how to handle war time situations. By doing this they unfortunately and unjustly created a precedent that would allow Courts to "legalize racism" so long as they could state a reason of security.
Reading the Korematsu case was very interesting because it shines a light on how each decision derives not from impartiality but rather from a place which very much reflects the political issues of the time. It appears that justices can often find a source to support their agenda as long as they have the numbers to back it up. While this is particularly relevant today, we can see how it has been the case for a long time. The majority opinion seems often to be written in dire terms where one cannot help but agree with their reasoning. In this case, they used Hirabayashi as precedent for upholding this issue, but Justice Roberts in his dissent notes that the basis is flimsy, as Hirabayashi was a much less severe instance and hardly comparable. In reading around the majority opinion it is obvious what the true motives are, but you'll never find them in the majority's opinion.
I think one of the most notable things to take away from this case, apart from the actual holding, is the matter in which the court based its reasoning and the potential precedent that it was setting. The court suggests:
"But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion."
While this opinion was written before strict scrutiny was fully developed, this reasoning is beyond dangerous. The court is setting an extremely low bar when the federal government engages in racial segregation. Is the takeaway that the government can engage in segregation when the goal is to target espionage and sabotage? Just think about the future wars that the United States would ultimately engage in. Or take it even broader, does espionage and sabotage only apply to times of war? I am sure it would be possible to dress up a lot of current legislation with the purpose of preventing espionage and sabotage.
Obviously, not the current standard, but quite shocking that the opinion chose this language with such obvious consequences.
It seems to me that the role of the juduciary in times of fear should be one of logic and reasoning, which seems like a lot to ask for considering both Korematsu and Trump v. Hawaii. By carving out this exception of wartime powers allowing for racial discrimination, I find myself agreeing with Justice Murphey that it simply allows for legalized racism. Especially when considering that Trump v. Hawaii expanded this reaosning to a time when the United States wasn't even at war. By allowing for deference to issues of national security, it seems any adminstration can come in and decalre a form of this legalized racism on a new class without reprecussions from the Court. Which brings me back to my answer: I wish SCOTUS played a role of logic and fear that could see through and beyond times of fear.
It’s impossible to reflect on this post without bringing up the South Florida Detention Facility (otherwise known as Alligator Alcatraz), as well as the Trump Administration’s goal of reopening Fort Bliss, a former internment camp of Japanese Americans, as well as every individual who has been racially targeted by the Trump Administration and unlawfully been taken into custody of the U.S. Government. With regard to the first question, telling the difference between security and scapegoating, on some fundamental level, comes down to both individual responsibility for seeking out the truth and an uncorrupted education in history (which arguably is probably becoming more difficult to obtain). Because national security is (literally) a constant excuse so violently steeped in policy, it’s difficult to answer the question posed regarding what role courts should play in times of fear. Frankly, I find it difficult to conceive of a time in U.S. history where fear does not exist as it pertains to the scapegoating of racial/ethnic minorities. What can be said for certain is that the courts have reflected and ruled far too late in the timeline of these camps (and bans) for it to be of any legitimate use beyond the belated and ineffectual reckoning with the state-sanctioned violence that occurs. What is clear in the 9 months after Trump took office is the importance of the very courageous federal district court judges who have been able to take meaningful action (such as the judges blocking Kilmar Abrego Garcia’s deportation the first and now second time). In times of fear, those judges have been effectual safeguards in a way SCOTUS has proven unwilling. While an unsatisfying and incomplete answer, it seems that some of our most effective tools in the present moment are those judges closest to us, and perhaps we've underestimated the importance of those first stopgaps.
You make a great point about how local judges can act fast while the Supreme Court often speaks too late. The real challenge is that “too late” rulings can still normalize injustice while it’s happening, even if they’re later overturned. Once the Court gives its stamp of approval, that decision can be used to justify similar actions for years.
Considering Korematsu, it is apparent how easily the Court can pass fear and prejudice off as legal justification. The Korematsu Court readily accepted that a threat only had to be "plausible" to treat an entire community as guilty. This reasoning is the real danger coming from this precedent. It demonstrates how easily the Constitution's protections can be manipulated for the "greater good" whenever people get scared and need a scapegoat. Justice Jackson's warning of handing a "loaded weapon" to the government may have felt like an exaggeration then, when the Court considered the policy justified. However, given recent use of this justification in Trump v. Hawaii, it really begins to read like a prediction. Even though Korematsu was disavowed by the Trump v. Hawaii Court, a policy sorting people by nationality, and by effect, religion, was upheld and defended in the name of national security. This demonstrates to the everyday American that scapegoating through racial profiling is acceptable in the eyes of the very people who are supposed to protect everyone equally. Courts should be the most skeptical of these justifications when fear is highest as it can otherwise lead to rash decisions that do not age well.
In general, Korematsu showed exactly what a Supreme Court of the land should not be doing in response to public fear. In response to general outrage and fear following the attack on Pearl Harbor, Executive Order 9066 was signed authorizing the internment of hundreds of thousands of people of Japanese descent, many of whom were American citizens. Then in response to this fear, the Supreme Court held that it was ok to deprive these people of some of their most basic rights guaranteed by the constitution. The reason they gave was deference to the military in a time of war. In doing so the majority also saw it fit to make sure that it was explicitly not allowing racial discrimination. To me this read as a court not acting as the impartial body that it was supposed to be but a body bending to the public opinion of the time. In doing so the Court deprived citizens of their rights and acted against the foundational values of the nation and its judiciary.
Upon reading the Korematsu case, I noticed a struggle with several of the Justices' opinions on how to deal with judicial discretion in situations of military expediency. It seems like the case carved out an exception to the protections offered by the Equal Protection Clause under the guise of wartime powers and military expediency. Justice Black emphasized that "pressing public necessity" can justify the exclusion of a racial group. Justice Frankfurter still chose to defer to the executive despite recognizing that the practice was racially discriminatory. Even though the executive and legislature have the ability to act expediently in times of national fear because of the grant of wartime powers, it is odd that the court does not attempt to balance these powers by evaluating whether the measures are constitutional in other contexts, especially when equal protection is implicated. Laws that are passed quickly using wartime powers are not often thought through. It seems like it should be the role of the courts to examine these measures more carefully instead of blindly deferring to the executive or legislature.
A concerning aspect of Korematsu v. United States, beyond the holding, was that some Justices recognized that their ruling upheld racial discrimination while still finding the law constitutional. Justice Frankfurter’s concurrence acknowledged the racially discriminatory practice yet deferred to the executive and Congress in times of war, deferring racial discrimination to the prevailing sentiment, political party, or social belief of the time. Additionally, Justice Black’s majority opinion’s reliance on “public necessity” to uphold the decision, and its determination that the Court had not endorsed racial discrimination, is extremely suspect. Justice Black’s decision lowers the bar on allowing racial discrimination through “reasonable wartime protections” and “precautionary measures,” which could be abused in the future.
In the more recent case of Trump v. Hawaii, the upholding of a broad exclusion of muslims from travel into the United States illustrates that same logic of fear and scapegoating as seen in Korematsu and Hirabayashi. Ultimately, fear, wartime decision-making, or emergencies should not allow congressional or executive decisions to go unchecked. The Supreme Court should carefully consider whether a law is racially discriminatory, with strict scrutiny, analysis, and reasoning. Otherwise, depending on the global or political circumstances the prevailing party faces, it could freely remove rights in the pursuit of “public necessity.” This possibility shows a system too precarious to allow unchecked executive or congressional decision-making. If the Court decides to play a neutral third party or defer to the executive or legislature, discrimination on race or religion could continue, and other rights could be in jeopardy.
I think the key error in the Korematsu court's reasoning was its focus on wartime powers in an emergency, which was strongly evident in Justice Frankfurter's concurrence. The Court focused heavily on this being a military necessity, and Frankfurther even stated that the law was unconstitutional, but that in an emergency we should defer to the government. This is incredibly poor reasoning. If a law is unconstitutional, it doesn't matter whether we were in an emergency or not. Further, looking beyond the war, who defines what an "emergency" is? How long can it last? While everyone can agree that the war was an emergency when we entered it, what if it had lasted years longer? What if we entered a "cold war" type era with Japan immediately following the war, could this have continued on for another decade?
Defining an emergency is incredibly subjective, and because of this any court relying on this to justify something that even they believe is unconstitutional sets up an incredibly dangerous line of reasoning. While Roberts was correct to denounce the holding in Korematsu in 2018, it's been clear that executives at both the state and federal level have felt more comfortable skirting the line of unconstitutionality by deeming something an "emergency" when it clearly is not. Recent examples include COVID restrictions at the state level that violated the first amendment, unlawfully extending moratorium on tenant evictions, and pointing to non-significant issues relating to foreign trade practices as justification for tariffs. The Korematsu court had the opportunity to shut down using an emergency to justify unconstitutionality, but when it didn't (and even openly endorsed it in Frankfurter's concurrence) it opened up opportunities for using "emergencies" to allow improper executive action. Maybe if the Court had gotten the holding correct the first time, we wouldn't have seen all these issues later on.
There are a few things that the Korematsu decision and the Trump v. Hawaii decision made me consider. 1) is how the definition of war would affect the authority of the federal government to discriminate against a group of persons; and 2) how racial discrimination is correlated with the current issue of religious discrimination in the context of immigration (and how the Due Process analysis is different)
Traditionally, Congress has to declare war to be at war, but we have been indirectly (and directly in some cases) been participating in ongoing wars for the past few years without being formally at war. In addition, the phrase "national security interest" has been being used to justify somewhat racially discriminatory decisions, such as in the Department of State v. Munoz case, and Trump v. Hawaii. This makes me wonder how far the "national security interest" argument can be taken, and it seems to parallel the Korematsu decision, where the Court justifies placing Japanese Americans in camps based on a fear-based rationale of military war time powers.
I also wonder how, in due process terms, racial discrimination compares to religious discrimination. Racial discrimination is subject to strict scrutiny, but religious discrimination in Trump v. Hawaii gets rational basis review (because of national security), despite the fact that Trump made statements specifically targeting Muslims. ("Statement on Preventing Muslim Immigration" that called for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on"; the United States was "having problems with Muslims coming into the country") Trump v. Hawaii at 700. The Court in Arlington Heights held that "the legislative or administrative history may be relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports," but that is in context of racial discrimination, which gets strict scrutiny. Is national security interest being used to justify religious discrimination like World War 2 was being used to justify racial discrimination?
This decision emphasizes some of the structural weaknesses of our most basic Constitutional structure, as well as demonstrating the ability of the Court to stretch framing, language, and reasoning to create an outcome it favors. Just as "national security" and "wartime powers" could function as a nebulous backdrop to ostensibly conceal bare racial discrimination, national sovereignty and security could serve the Trump administration's bare animus against Muslims in the travel context. The intractable issue is that even where certain characteristics are protected,
certain government actors will always hold "trump cards," so to speak, in the nebulous areas where the executive, or the political branches generally, approach an absolute power free from judicial scrutiny. This is even more dangerous in a system where outside of explicit racial classifications, which are apparently still liable to be "trumped," disparate impact will not suffice to access redress.
This raises an interesting tension between strict scrutiny for government actions that classify people by race and Justice Frankfurter's suggestion that wartime conditions should alter what government action is constitutionally permissible. If racial classifications are supposed to receive the most demanding review, it's clearly problematic for that protection to become less meaningful during emergencies (which we know is when fear and political pressure are likely to lead to more discriminatory action). This seems like an even greater concern amidst scapegoating, especially when fear is used to construct a "security" justification for targeting a particular group in order to rally support and deflect criticism. Therefore, allowing emergencies to weaken the Court's amount of scrutiny makes this constitutional protection contingent on circumstances in which it may be most needed.
The difference between security and scapegoating should be fairly easy to tell apart and in this case it is extremely easy to see the difference and the issues with the Court's reasoning. However, we are looking at this case more than 80 years later. The world has changed a lot and has become much more accepting of diversity than it was. We also are not facing direct attacks in our country during a time of world war. The Court did not do the job it was supposed to do when it made the decision in this case. It did the job the military and president wanted it do. Instead of being fair and neutral in times of fear, they caved under the pressure of not undermining the President's and military's decisions on how to handle war time situations. By doing this they unfortunately and unjustly created a precedent that would allow Courts to "legalize racism" so long as they could state a reason of security.
Reading the Korematsu case was very interesting because it shines a light on how each decision derives not from impartiality but rather from a place which very much reflects the political issues of the time. It appears that justices can often find a source to support their agenda as long as they have the numbers to back it up. While this is particularly relevant today, we can see how it has been the case for a long time. The majority opinion seems often to be written in dire terms where one cannot help but agree with their reasoning. In this case, they used Hirabayashi as precedent for upholding this issue, but Justice Roberts in his dissent notes that the basis is flimsy, as Hirabayashi was a much less severe instance and hardly comparable. In reading around the majority opinion it is obvious what the true motives are, but you'll never find them in the majority's opinion.
I think one of the most notable things to take away from this case, apart from the actual holding, is the matter in which the court based its reasoning and the potential precedent that it was setting. The court suggests:
"But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion."
While this opinion was written before strict scrutiny was fully developed, this reasoning is beyond dangerous. The court is setting an extremely low bar when the federal government engages in racial segregation. Is the takeaway that the government can engage in segregation when the goal is to target espionage and sabotage? Just think about the future wars that the United States would ultimately engage in. Or take it even broader, does espionage and sabotage only apply to times of war? I am sure it would be possible to dress up a lot of current legislation with the purpose of preventing espionage and sabotage.
Obviously, not the current standard, but quite shocking that the opinion chose this language with such obvious consequences.
It seems to me that the role of the juduciary in times of fear should be one of logic and reasoning, which seems like a lot to ask for considering both Korematsu and Trump v. Hawaii. By carving out this exception of wartime powers allowing for racial discrimination, I find myself agreeing with Justice Murphey that it simply allows for legalized racism. Especially when considering that Trump v. Hawaii expanded this reaosning to a time when the United States wasn't even at war. By allowing for deference to issues of national security, it seems any adminstration can come in and decalre a form of this legalized racism on a new class without reprecussions from the Court. Which brings me back to my answer: I wish SCOTUS played a role of logic and fear that could see through and beyond times of fear.
It’s impossible to reflect on this post without bringing up the South Florida Detention Facility (otherwise known as Alligator Alcatraz), as well as the Trump Administration’s goal of reopening Fort Bliss, a former internment camp of Japanese Americans, as well as every individual who has been racially targeted by the Trump Administration and unlawfully been taken into custody of the U.S. Government. With regard to the first question, telling the difference between security and scapegoating, on some fundamental level, comes down to both individual responsibility for seeking out the truth and an uncorrupted education in history (which arguably is probably becoming more difficult to obtain). Because national security is (literally) a constant excuse so violently steeped in policy, it’s difficult to answer the question posed regarding what role courts should play in times of fear. Frankly, I find it difficult to conceive of a time in U.S. history where fear does not exist as it pertains to the scapegoating of racial/ethnic minorities. What can be said for certain is that the courts have reflected and ruled far too late in the timeline of these camps (and bans) for it to be of any legitimate use beyond the belated and ineffectual reckoning with the state-sanctioned violence that occurs. What is clear in the 9 months after Trump took office is the importance of the very courageous federal district court judges who have been able to take meaningful action (such as the judges blocking Kilmar Abrego Garcia’s deportation the first and now second time). In times of fear, those judges have been effectual safeguards in a way SCOTUS has proven unwilling. While an unsatisfying and incomplete answer, it seems that some of our most effective tools in the present moment are those judges closest to us, and perhaps we've underestimated the importance of those first stopgaps.
You make a great point about how local judges can act fast while the Supreme Court often speaks too late. The real challenge is that “too late” rulings can still normalize injustice while it’s happening, even if they’re later overturned. Once the Court gives its stamp of approval, that decision can be used to justify similar actions for years.
Considering Korematsu, it is apparent how easily the Court can pass fear and prejudice off as legal justification. The Korematsu Court readily accepted that a threat only had to be "plausible" to treat an entire community as guilty. This reasoning is the real danger coming from this precedent. It demonstrates how easily the Constitution's protections can be manipulated for the "greater good" whenever people get scared and need a scapegoat. Justice Jackson's warning of handing a "loaded weapon" to the government may have felt like an exaggeration then, when the Court considered the policy justified. However, given recent use of this justification in Trump v. Hawaii, it really begins to read like a prediction. Even though Korematsu was disavowed by the Trump v. Hawaii Court, a policy sorting people by nationality, and by effect, religion, was upheld and defended in the name of national security. This demonstrates to the everyday American that scapegoating through racial profiling is acceptable in the eyes of the very people who are supposed to protect everyone equally. Courts should be the most skeptical of these justifications when fear is highest as it can otherwise lead to rash decisions that do not age well.
In general, Korematsu showed exactly what a Supreme Court of the land should not be doing in response to public fear. In response to general outrage and fear following the attack on Pearl Harbor, Executive Order 9066 was signed authorizing the internment of hundreds of thousands of people of Japanese descent, many of whom were American citizens. Then in response to this fear, the Supreme Court held that it was ok to deprive these people of some of their most basic rights guaranteed by the constitution. The reason they gave was deference to the military in a time of war. In doing so the majority also saw it fit to make sure that it was explicitly not allowing racial discrimination. To me this read as a court not acting as the impartial body that it was supposed to be but a body bending to the public opinion of the time. In doing so the Court deprived citizens of their rights and acted against the foundational values of the nation and its judiciary.
Upon reading the Korematsu case, I noticed a struggle with several of the Justices' opinions on how to deal with judicial discretion in situations of military expediency. It seems like the case carved out an exception to the protections offered by the Equal Protection Clause under the guise of wartime powers and military expediency. Justice Black emphasized that "pressing public necessity" can justify the exclusion of a racial group. Justice Frankfurter still chose to defer to the executive despite recognizing that the practice was racially discriminatory. Even though the executive and legislature have the ability to act expediently in times of national fear because of the grant of wartime powers, it is odd that the court does not attempt to balance these powers by evaluating whether the measures are constitutional in other contexts, especially when equal protection is implicated. Laws that are passed quickly using wartime powers are not often thought through. It seems like it should be the role of the courts to examine these measures more carefully instead of blindly deferring to the executive or legislature.
A concerning aspect of Korematsu v. United States, beyond the holding, was that some Justices recognized that their ruling upheld racial discrimination while still finding the law constitutional. Justice Frankfurter’s concurrence acknowledged the racially discriminatory practice yet deferred to the executive and Congress in times of war, deferring racial discrimination to the prevailing sentiment, political party, or social belief of the time. Additionally, Justice Black’s majority opinion’s reliance on “public necessity” to uphold the decision, and its determination that the Court had not endorsed racial discrimination, is extremely suspect. Justice Black’s decision lowers the bar on allowing racial discrimination through “reasonable wartime protections” and “precautionary measures,” which could be abused in the future.
In the more recent case of Trump v. Hawaii, the upholding of a broad exclusion of muslims from travel into the United States illustrates that same logic of fear and scapegoating as seen in Korematsu and Hirabayashi. Ultimately, fear, wartime decision-making, or emergencies should not allow congressional or executive decisions to go unchecked. The Supreme Court should carefully consider whether a law is racially discriminatory, with strict scrutiny, analysis, and reasoning. Otherwise, depending on the global or political circumstances the prevailing party faces, it could freely remove rights in the pursuit of “public necessity.” This possibility shows a system too precarious to allow unchecked executive or congressional decision-making. If the Court decides to play a neutral third party or defer to the executive or legislature, discrimination on race or religion could continue, and other rights could be in jeopardy.
I think the key error in the Korematsu court's reasoning was its focus on wartime powers in an emergency, which was strongly evident in Justice Frankfurter's concurrence. The Court focused heavily on this being a military necessity, and Frankfurther even stated that the law was unconstitutional, but that in an emergency we should defer to the government. This is incredibly poor reasoning. If a law is unconstitutional, it doesn't matter whether we were in an emergency or not. Further, looking beyond the war, who defines what an "emergency" is? How long can it last? While everyone can agree that the war was an emergency when we entered it, what if it had lasted years longer? What if we entered a "cold war" type era with Japan immediately following the war, could this have continued on for another decade?
Defining an emergency is incredibly subjective, and because of this any court relying on this to justify something that even they believe is unconstitutional sets up an incredibly dangerous line of reasoning. While Roberts was correct to denounce the holding in Korematsu in 2018, it's been clear that executives at both the state and federal level have felt more comfortable skirting the line of unconstitutionality by deeming something an "emergency" when it clearly is not. Recent examples include COVID restrictions at the state level that violated the first amendment, unlawfully extending moratorium on tenant evictions, and pointing to non-significant issues relating to foreign trade practices as justification for tariffs. The Korematsu court had the opportunity to shut down using an emergency to justify unconstitutionality, but when it didn't (and even openly endorsed it in Frankfurter's concurrence) it opened up opportunities for using "emergencies" to allow improper executive action. Maybe if the Court had gotten the holding correct the first time, we wouldn't have seen all these issues later on.
There are a few things that the Korematsu decision and the Trump v. Hawaii decision made me consider. 1) is how the definition of war would affect the authority of the federal government to discriminate against a group of persons; and 2) how racial discrimination is correlated with the current issue of religious discrimination in the context of immigration (and how the Due Process analysis is different)
Traditionally, Congress has to declare war to be at war, but we have been indirectly (and directly in some cases) been participating in ongoing wars for the past few years without being formally at war. In addition, the phrase "national security interest" has been being used to justify somewhat racially discriminatory decisions, such as in the Department of State v. Munoz case, and Trump v. Hawaii. This makes me wonder how far the "national security interest" argument can be taken, and it seems to parallel the Korematsu decision, where the Court justifies placing Japanese Americans in camps based on a fear-based rationale of military war time powers.
I also wonder how, in due process terms, racial discrimination compares to religious discrimination. Racial discrimination is subject to strict scrutiny, but religious discrimination in Trump v. Hawaii gets rational basis review (because of national security), despite the fact that Trump made statements specifically targeting Muslims. ("Statement on Preventing Muslim Immigration" that called for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on"; the United States was "having problems with Muslims coming into the country") Trump v. Hawaii at 700. The Court in Arlington Heights held that "the legislative or administrative history may be relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports," but that is in context of racial discrimination, which gets strict scrutiny. Is national security interest being used to justify religious discrimination like World War 2 was being used to justify racial discrimination?
This decision emphasizes some of the structural weaknesses of our most basic Constitutional structure, as well as demonstrating the ability of the Court to stretch framing, language, and reasoning to create an outcome it favors. Just as "national security" and "wartime powers" could function as a nebulous backdrop to ostensibly conceal bare racial discrimination, national sovereignty and security could serve the Trump administration's bare animus against Muslims in the travel context. The intractable issue is that even where certain characteristics are protected,
certain government actors will always hold "trump cards," so to speak, in the nebulous areas where the executive, or the political branches generally, approach an absolute power free from judicial scrutiny. This is even more dangerous in a system where outside of explicit racial classifications, which are apparently still liable to be "trumped," disparate impact will not suffice to access redress.
This raises an interesting tension between strict scrutiny for government actions that classify people by race and Justice Frankfurter's suggestion that wartime conditions should alter what government action is constitutionally permissible. If racial classifications are supposed to receive the most demanding review, it's clearly problematic for that protection to become less meaningful during emergencies (which we know is when fear and political pressure are likely to lead to more discriminatory action). This seems like an even greater concern amidst scapegoating, especially when fear is used to construct a "security" justification for targeting a particular group in order to rally support and deflect criticism. Therefore, allowing emergencies to weaken the Court's amount of scrutiny makes this constitutional protection contingent on circumstances in which it may be most needed.