13 Temp. Pol. & Civ. Rts. L. Rev. 663 (2003-2004)
Reflections on Korematsu, Brown and White Innocence; Gotanda, Neil

handle is hein.journals/tempcr13 and id is 669 raw text is: REFLECTIONS ON KOREMA TSU, BROWN AND WHITE
INNOCENCE
by NEIL GOTANDA
I. KOREMATSUAND STRICT SCRUTINY
Korematsu v. U.S. is best known as the precedent for the strict scrutiny
standard of judicial review under equal protection.' A reading of the actual opinion
in Korematsu v. U.S.2 quickly reveals that the Court's treatment has very little to do
with equal protection. All five opinions-Hugo Black's majority opinion for the
Court,' Felix Frankfurter's concurrence,4 and the three dissents by Owen Roberts,5
Frank Murphy,6 and Robert Jackson7--address the exclusion and detention of
Japanese Americans as an issue of war powers. On the issue of heightened judicial
review, only Justice Black suggests something resembling strict scrutiny in a
passing comment. Black begins his majority opinion with a pre-emptive response
to Justice Murphy's charge that the government has fallen into the ugly abyss of
racism.8  Black comments: It should be noted, to begin with, that all legal
restrictions which curtail the civil rights of a single group are immediately suspect.
That is not to say that all such restrictions are unconstitutional. It is to say that
courts must subject them to the most rigid scrutiny.9
Black later emphatically denies that this case involves racial prejudice:
To cast this case into outlines of racial prejudice, without reference to the
real military dangers which were presented, merely confuses the issue.
Korematsu was not excluded from the Military Area because of hostility
to him or his race. He was excluded because we are at war with the
Japanese Empire .... ,0
Justice Black never explains his distinction between hostility against
Korematsu's race and war with the Japanese Empire. But as far as the Court's
holding, the language is clear that the decision does not involve racial
discrimination reviewed under the Equal Protection Clause.
What, then, were the issues that the Court did address? Though phrased
* Copyright © 2004 Neil Gotanda, Professor of Law, Western State University College of Law,
Fullerton California. All rights reserved. Special thanks to Phoebe Haddon, David Kairys, Maria
Santos, and the editors of the Temple Political & Civil Rights Law Review.
1. The comments in this section are drawn from Neil Gotanda, The Story of Korematsu: The
Japanese American Cases, in CONSTITUTIONAL LAW STORIES (Michael C. Dorf ed., 2004).
2. 323 U.S. 214 (1944).
3. Korematsu, 323 U.S. at 215-24.
4. Id. at 224-25 (Frankfurter, J., concurring).
5. Id. at 225-33 (Roberts, J., dissenting).
6. Id. at 233-42 (Murphy, J., dissenting).
7. Id. at 257-72 (Jackson, J., dissenting).
8. Korematsu, 323 U.S. at 233 (Murphy, J., dissenting).
9. Id. at 216.
10. Id. at 223.

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