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Vernellia R. Randall
Professor of Law
The University of Dayton
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The Evolution Of Race In The Law:
The Supreme Court Moves From Approving Internment
Of Japanese Americans To Disapproving Affirmative
Action For African Americans, Reggie Oh and Frank
Wu, 1 Mich. J. Race & L. 165 -193, 165-166
(1996). Copyright (C) 1996 Michigan Journal of
Race & Law; Reggie Oh, Frank Wu.
Over the past fifty years, the United States Supreme Court has
articulated the constitutional standards for the governmental use
of racial classifications by referring repeatedly to its wartime
decisions on the Japanese American internment. Those decisions
were understood then as being emphatically not about race, but
have been understood since as being equally emphatically based
upon acquiescence to racism. In the past year, with the most
recent race cases that have been handed down by the Court,
especially its affirmative action decision, the doctrines that
have given substance to the constitutional guarantee of equal
protection have become increasingly problematic. The awkward
development of the doctrines can be traced to their origins.
During World War II, the Supreme Court decided the historic case
of Korematsu v. United States. There, the Court approved the
internment of Japanese Americans as a racial group without
individual determinations of political loyalty. The case is one
of the "justly infamous episode[s]" in the history of
the American judiciary. . . . It remains the best known
constitutional challenge brought by Asian Americans as well as
the most important source of the standard known as "strict
scrutiny," which marks the constitutional limits of the
public use of racial classifications and private use of racial
generalizations. In its 1994-1995 Term, the Supreme Court decided
the similarly significant case of Adarand Constructors, Inc. v.
Pena. There, the Court effectively disapproved of affirmative
action for African Americans and other racial minorities as
strongly as it would of racism against these groups. The Adarand
opinion affects not only so-called "reverse
discrimination" but also conventional discrimination. It
applies "strict scrutiny" to all racial references in
the law, regardless of the underlying intent, impact, or context.
As the Court suggests, the Korematsu precedent is crucial to the
Adarand decision. In Adarand, the Court analyzes Korematsu in
depth, acknowledging that its own judgment had been mistaken in
the internment cases, instead of simply citing the decisions as
it formally had done until the very recent past. The Court
nevertheless fails to appreciate the differences between
Korematsu and Adarand, and in particular the consequences of
using "strict scrutiny" for all racial classifications.
This essay explores the complex relation-ship between Korematsu
and Adarand, and offers a critique of the reasoning used in both
cases. The essay argues that Adarand may permit invidious racial
classifications to survive constitutional challenge and that its
analysis of the standing issues associated with collateral
litigation over affirmative action are inconsistent with its
resolution of substantive issues of racial discrimination. [BACK]
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