Dodging Responsibility: Hirabayashi

Abstract

“Strict scrutiny” for race-based classifications is typically traced back to Korematsu v. United States, the Japanese-American internment case in which the Supreme Court trumpeted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.”  But the link can be made one year earlier, to the first of the internment cases: Hirabayashi v. United States.  Although less well-known, Hirabayashi is arguably the more important case because it created the procedural and precedential foundation upon which Korematsu was built.

To complicate matters, we must take account of two Hirabayashi cases: one decided during World War II, and the other a part of the 1980s coram nobis cases.  In these latter cases, the men whose convictions the Supreme Court affirmed in the 1940s marched back into federal district court, and on the basis of “smoking gun” evidence discovered in the National Archives, they achieved vindication four decades after their initial defeat.  Although these cases are rightly celebrated, a closer review of Hirabayashi's victory reveals a troublesome tale about judicial accountability and evasion of responsibility.

[Due to copyright constraints, this chapter is not available for free download.  But the book is available for purchase.  Also, this chapter draws heavily on two other freely available articles, Denying Prejudice and Watching the Watchers.]