It’s Hirabayashi, Not Korematsu

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Eric Muller: It’s Hirabayashi, Not Korematsu

On his “Is that Legal?" blog (isthatlegal.org), Chapel Hill professor Eric Muller -- a leading expert on the internment of Japanese-Americans in World War II -- writes:

Here's the question I'd ask Judge Roberts at his confirmation hearing, if I had the chance:

"When the United States was at war with Japan, Germany, and Italy in 1942, the Army imposed a dusk-to-dawn curfew along the West Coast for U.S. citizens of Japanese ancestry, but no curfew anywhere in the United States for U.S. citizens of German or Italian ancestry. In Hirabayashi v. United States (1943), a unanimous Supreme Court held that the curfew did not violate the due process rights of the affected Americans.

"Was Hirabayashi correctly decided?"

Muller also notes that:


Senators might waste their time on questions about Korematsu v. United States (1944), which, although never overruled, is considered by nearly everyone to be one of the Court's four or five worst decisions ever. (Korematsu concerned not the curfew, but the wholesale exclusion of Japanese Americans from the West Coast.) A Korematsu question will be easy for Roberts, and his answer won't tell us much.

…

For anyone interested in better understanding the Justice-to-be's views on executive power, race discrimination, and the balance of liberty and security in wartime, Hirabayashi is the money question.