Texas Law Review
Tex. L. Rev.
It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into the world. The Ring-Danes will suffer further death and havoc until Beowulf can subdue her. Unexpected second monsters can appear in real life as well, and the Supreme Court’s recent opinion in Trump v. Hawaii may have set us up for one. In his opinion for the Court, Chief Justice Roberts put the long-enfeebled precedent of Korematsu v. United States out of its — and our — misery. Of that notorious decision upholding the mass removal of Japanese-Americans from the West Coast, the Chief Justice said this: it “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”
A nemesis has been slaughtered and there is much to celebrate. But this is not a moment for mead and peaceful slumber. Around the corner awaits another monster, a bigger threat than Korematsu itself. I am referring to Hirabayashi v. United States, the Supreme Court’s 1943 decision unanimously upholding the dusk-to-dawn curfew imposed on Japanese-Americans a few weeks before the mass removal orders of Korematsu. The Hirabayashi decision preceded Korematsu by eighteen months and did the doctrinal work necessary to support the military’s actions; the Justices in the Korematsu majority made clear that they felt constrained to uphold mass removal “in light of the principles we announced in the Hirabayashi case.” Hirabayashi was Korematsu’s progenitor as Grendel’s mother was Grendel’s.
Yet Hirabayashi has gone unnoticed. In the decades after the war, Korematsu drew all of the attention, perhaps because the burdens it endorsed were the more extreme, or perhaps because it formulated its legal rule a bit more crisply, or perhaps because it — rather than Hirabayashi — was the case that generations of law students encountered in their constitutional law casebooks. Until Trump v. Hawaii, we were ominously reminded time and again in the literature that Korematsu had “never actually been overruled.” We find no such reminder in those pages about Hirabayashi. This is troubling on its own, and even more so because judges and lawyers have continued to cite Hirabayashi without evident shame.
This Essay is a warning. Some today are celebrating Korematsu’s demise; others maintain that Trump v. Hawaii actually revived it. But all of that is a distraction. While the debate swirls, the dangerous Hirabayashi decision hides in plain sight, its reasoning unexamined and its holding unassailed. We should attend to Korematsu’s mother now, lest she attend to us later.