Boston University School of Law
This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned decision that licensed racial animus and failed to account for the magnitude of unequal suffering by Japanese Americans under wartime internment policies. Third, the case stands for little as doctrine that subsequent precedent can't offer. Fourth, in finally overruling Korematsu, the Roberts Court did not clearly reject the government's ability to use race going forward when the need is great enough. Fifth, we do in fact learn valuable lessons comparing Korematsu and Trump v. Hawaii: a president's power to inflict mass suffering has grown exponentially rather than diminished, he has more bureaucracies and defenders at his disposal, it's easier for a president to cover his tracks when bigotry is involved, and judges continue to underestimate the incentives created by their decisions to inflict future harm. For all these reasons, Korematsu deserves a proper burial—more than the Roberts Court has given it. Trump v. Hawaii should be given the same treatment at the next best opportunity.
Robert L. Tsai,
A Proper Burial,
Boston University School of Law Research Paper Series
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1166