AAPI Heritage Month: Looking Back at Korematsu
May 1 marks the start of Asian American and Pacific Islander (AAPI) Heritage Month.
Today’s celebration of AAPI Heritage Month began in 1978 when Congress designated the first 10 days of May as “Asian-Pacific Heritage Week.” In 1992, President George H.W. Bush signed a bill passed by Congress that designated the whole month of May as AAPI Heritage Month.
AAPI Heritage Month is designed to bring recognition to the contributions of millions of Americans whose family origins are in Pacific Rim nations or the Asian subcontinent.
AAPI Heritage Month is an appropriate time to review Korematsu v. United States, the 1944 U.S. Supreme Court case that Pulitzer Prize-winning journalist Charlie Savage has called “a stain that is almost universally recognized as a shameful mistake.”
I cannot agree more.
In his New York Times article five years ago, Savage wrote that the Korematsu ruling was “an exceedingly rare modern example in which the court explicitly upheld government discrimination against an entire category of people based upon a trait like race or ethnicity.”
In 1942, at the age of 23, Fred Korematsu, who was born in the U.S. to Japanese parents, refused to go to the government’s incarceration camps for Japanese Americans during World War II. Although Korematsu’s loyalty to the U.S. was not in dispute, Korematsu was arrested and convicted of defying the government’s order. He appealed his case all the way to the Supreme Court. In 1944, the Supreme Court ruled against him, arguing that the incarceration was justified due to military necessity.
In 1983, a pro bono legal team re-opened Korematsu’s 40-year-old case after discovering documents that government intelligence agencies had hidden from the Supreme Court. The documents showed that Japanese Americans had committed no acts of treason to justify mass incarceration due to military necessity. As a result, Korematsu’s conviction was overturned in federal court.
In 1998, Korematsu received the Presidential Medal of Freedom, the nation’s highest civilian honor. Six states now recognize January 30 (Korematsu’s birthday) as "Fred Korematsu Day," with other states having recognized Fred Korematsu Day previously by proclamation.
Korematsu’s Impact on Constitutional Law Jurisprudence
The Korematsu opinion established the first instance in which the Supreme Court applied the strict scrutiny standard of review to racial discrimination by the government.
Under the strict scrutiny standard of review, the government has the burden to show that its law is necessary (or narrowly tailored) to achieve a compelling government interest. The result is invalidation of almost every case where the classification would burden a person because of her race or national origin. The only explicit race discrimination to be upheld by the Supreme Court despite the applicability of the strict scrutiny standard of review was the situation in Korematsu.
Under the strict scrutiny standard of review, the government has the burden to show that its law is necessary (or narrowly tailored) to achieve a compelling government interest
Korematsu is debatably no longer good law. In Trump v. Hawaii—in which the Supreme Court in 2018 upheld President Donald Trump’s ban on travel into the U.S. by citizens of several predominantly Muslim countries—Chief Justice John Roberts wrote that “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in the law under the Constitution.”
“Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in the law under the Constitution.”
However, Robert’s discussion of the Korematsu case was merely dicta and, therefore, not binding on lower courts.
Therefore, it is because of the Korematsu decision that law students and bar examinees need to know that the strict scrutiny standard of review applies to race-based classification.
