Ending The Korematsu Era: A Modern Approach

Craig Green, Temple Law School

Abstract

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu era.” Some of these cases involve race, but most do not. Instead, what they share is a commitment to broad presidential power and limited judicial oversight, particularly in the fields of executive detention and trial by military commission.

This historical/doctrinal reinterpretation has two consequences. First, it highlights the Bush Administration’s reliance on Korematsu-era principles in the War on Terror, and a corresponding rejection of such principles by the Supreme Court. Comparisons between old and recent war-power cases ones reveal that the Court has taken several astonishing steps, which lie almost hidden beneath its technical, “minimalist” style of reasoning. Legal-historical parallels between the distant and recent past may help readers gauge whether the modern Court’s dynamism should count as jurisprudential progress.

Second, my approach raises deeper questions about how the meaning of “iconic cases” like Korematsu is determined, and how that meaning can change. Because war-power cases arise only sporadically and under conditions of great political pressure, there is a peculiar urgency for the legal community to discuss the significance of Korematsu and its modern applications. The Article concludes by questioning whether “lessons from the past” can ever be realistically applied to limit future Presidents’ power.