Excerpted From: Michael Chang, Doctrinal Instability in Contextual Race-conscious Review: The Continuing Legacy of the Korematsu Court's Ultra-deference Standard, 26 Asian Pacific American Law Journal 103 (Spring, 2023) (106 Footnotes) (Full Document)


MichaelChangThe notorious seventy-eight-year-old Supreme Court case, Korematsu v. United States, made headlines when Chief Justice Roberts referenced it in his 2018 Trump v. Hawaii opinion. He stated, “Korematsu 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.”’

Korematsu was held up as a particularly troubling legal outcome that, with today's hindsight, is clearly discriminatory and in violation of the Fifth Amendment. However, the underlying legal rationale of ultra-deference to national security interests in Korematsu was never overturned and, in fact, played an important role in Trump v. Hawaii--so much so that Justice Roberts specifically emphasized the difference between Korematsu and the 2018 Trump rationale, lest it be similarly tainted.

Strict scrutiny, a tool designed to address the history of law and policy's role in race-based discrimination, developed only after a strong social and cultural awareness of race discrimination as power asymmetry became popular. American anthropologist Franz Boas introduced the concept of “cultural relativism” at the turn of the twentieth century, countering the prevailing notions of scientific racism. In attacking the problem of ethnocentrism, he cogently argued that race is not biological--at a time when it was widely believed to be--and that cultures should not be referentially compared to other cultures or to an idealized standard. With his influential students, Ruth Benedict and Zora Neale Hurston, Boas laid the foundations for sociocultural arguments against the racist rationales underlying social evolutionism and eugenics that justified differential outcomes and, thus, discrimination. The contemporary historical backdrop of the era of Boas and his influential students was segregation, colonialism and post-colonialism, World War II, national socialism, and the Cold War. The legal segregation and genocides of the mid-century were viewed by Boasian cultural relativists as the political consequences of power asymmetries deeply embedded in stereotypes.

In the vein of a cultural relativist analysis, this Article seeks to parse out assumptions about the operation of race, discrimination, and remedies that underlie the contextual application of strict scrutiny. This Article thus considers the Court's modern ultra-deference to government assertions of national security rationales, as evidenced by the post- 9/11 era, as a radical turn from its original intent--to apply a robust review of government use of race.

Cultural relativism countered social Darwinism by arguing that the association of race and national origin with material culture and perceived sociopolitical complexity--two traditional markers of a culture's advancement--was ethnocentric and thus false. This was a first version of the developing American concept of diversity and inclusion reflected in the sentiments behind Associate Justice Harlan F. Stone's famed Footnote 4 in United States v. Carolene Products. The judiciary assumed that the appropriate role of race in government policy was that “discrete and insular” minorities, given their isolation and outsider positionality, needed federal protection from the majority for the proper functioning of equal protection. The Carolene Products Court asserted that it may be the federal judiciary's responsibility to apply higher judicial review, or “exacting judicial scrutiny” with a “narrower scope” of presumptive constitutionality of government conduct, to allegations of discrimination against minorities. As such, the Court broadly framed the application of an incipient strict scrutiny for allegations of Fourteenth Amendment and Bill of Rights violations.

This fledgling blueprint for strict scrutiny was a response to the Jim Crow era of explicit legal segregation, involving both de jure and de facto race discrimination. As such, during the Jim Crow era, from 1879 into the 1960s, the federal judiciary increasingly viewed itself as a corrective hand to discriminatory local laws.

Today, in the post-civil rights era the federal judiciary's view on its role regarding race has become much more complex. In particular, it has increasingly taken the position that the use of race in the law, whether it be de jure or de facto, remedial or invidious, may in fact reproduce race-based differences and stereotypes that are in and of themselves discriminatory. The assumptions can be described as two-fold. On one hand, due process is formally and readily available to minorities through sweeping anti-discrimination federal laws passed in the 1960s. On the other hand, while generational consequences persisting from the Jim Crow era, intentional race discrimination is rare and isolated to individual actors. These two viewpoints are reflected in the legal presumptions today for judicial review of race-conscious remedies behind burdens of proof and for the structuring of the means and ends tests that we conduct for a strict scrutiny analysis.

Strict scrutiny is both a means and an ends test applied to race-conscious classifications in government policies, applied to policies regardless of whether they are invidious or benignly remedial in objective--a color-blind approach. The two-part test begins with an inquiry into whether the objective or goal of the policy represents a compelling government interest justifying the use of race. If the government is able to prove that its purported policy interest is compelling, it must survive a second important hurdle: the question of whether its policy is narrowly tailored. This means the government must be able to show that there are no race-neutral means by which it could have reached its purported policy objective. This shift towards requiring plaintiffs to satisfy a burden of showing intentionality in discrimination reflects a change in the underlying sociocultural consensus on what constitutes discrimination and what the appropriate remedy should be if there is evidence of discrimination.

This is the historical and political context out of which the concept of strict scrutiny emerged, shaped by competing sociocultural impulses on the appropriate role of race in American society. This Article argues that there are competing and inconsistent approaches to the contextual application of strict scrutiny today, particularly in the contexts of education and national security. Contextual strict scrutiny reflects sharply divergent views toward the relative weights that the Court applies in gauging the interests of society as a whole in a national security context compared to gauging the interests of an individual in a context like education.

Specifically, the Court applies ultra-deference to national security interests, yet limited deference to post-secondary admissions policies. For example, the Court in Fisher v. University of Texas at Austin (Fisher I), reaffirmed its position that strict scrutiny should be applied to all affirmative action policies. In Fisher I, Justice Kennedy further interpreted Justice Powell's language in Regents of the University of California v. Bakke, stating:

It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions ‘touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.’

In post-secondary education admissions, the Court has repeatedly held that the use of race in admissions policies triggers strict scrutiny review, regardless of the motivation and purpose behind the policy. However, in other contexts, specifically national security and immigration, the Court has deferred to congressional authority and the “broad discretion” of the Executive in border control, as stated in Trump, and reflecting the highly deferential posture of Korematsu. This dichotomy fails to create symmetry and instead represents indeterminacy as it results in the inconsistent application of deference on issues regarding the role of race in public policy. Thus, while little or no deference is provided to educational policymakers and strict scrutiny is applied in all affirmative action contexts, there is significant deference to government rationales in the context of national security since Korematsu. This contrast perpetuates an inconsistent and indeterminate application of the Fourteenth Amendment's Equal Protection Clause in the remedying of past race-based discrimination.

Two questions drive this Article. First, what are the current conflicting sociocultural viewpoints on discrimination that drive the indeterminacy of the application of strict scrutiny? Second, how should the Court determine the appropriate balance between the safety and security interests of society versus the civil liberties and rights interests of racial minority groups that are impacted by such policies?

The recent history of the Supreme Court's inconsistent approach to race classification in governmental conduct reveals a bifurcated Korematsu holding that persists today. Korematsu represents a conflict between the interests of the whole versus the marginalized, a conflict the Fourteenth Amendment's Equal Protection Clause was engineered to mediate. In other words, the purpose of the clause was specifically to remedy--and manage-- discrimination against minorities, as it required the extension of full citizenship rights to recently freed African Americans. As such, it was an admission that federal jurisdiction over race was necessary to remedy discrimination by enforcing compliance across jurisdictions with the goal of removing indeterminacy.

In Korematsu, this mediation of interests was framed as a balancing of interests between national security--society as a whole--versus those of Japanese Americans--a disempowered minority. This balancing act is the proverbial to be or not to be conflict of American jurisprudence's long-running, internal narrative on how to remedy race-based discrimination.

The Court's bifurcation of strict scrutiny is reflected in the way the Court applies this standard in the education context versus the national security context. Comparing the Court's application of strict scrutiny review in the educational and national security contexts illustrates two polar opposite approaches to evaluating race-conscious laws. The polarities describe academic policymaking deference on the basis of traditional First Amendment rights with affirmative action, where the Court has declined to conduct a more traditional standing review of plaintiffs regardless of the relevant policy's invidious or remedial purpose, even as it applies strict scrutiny. Conversely, with national security concerns, the Court has effectively established a rule of deference to Congress and the Executive, declining to apply strict scrutiny. It is apparent that the current strict scrutiny jurisprudence is applied differently based on context and is, thus, inconsistent in application. This varying approach is problematic because it results in indeterminate outcomes in equal protection law and places a disparate burden on minority groups.

In Part I, this Article argues that the Court's contextual application of strict scrutiny is a doctrinal manifestation of what critical race theorist Neil Gotanda described as our “color-blind constitutionalism”. This universalist interpretation of race avoids the question of whether the alleged harm caused by governmental conduct involves (1) a benign and remedial intent, or (2) differential treatment, purposeful or otherwise, based on race. Moreover, this approach circumvents the important legal doctrine of standing, which is embedded in the traditional constitutional law rationale of equity. This equity-based model poses the question of whether a plaintiff has experienced harm such that the person has a right to a corrective remedy if such harm is adequately proven. This model recognizes the importance of history, and thus would be copacetic with the remedying of lingering effects from past race-based discrimination.

In Part II, the Article specifically examines the problem of indeterminacy in the Court's balancing of state and individual interests in Korematsu--and its progeny, Trump v. Hawaii, in which the Court declined to apply strict scrutiny. In Part III, the Article argues that the cognitive role of implicit bias in systemic and individual forms of discrimination has complicated the application of contextual strict scrutiny. Part III reflects on the Court's troubling conflation of invidious and benign uses of race in its universalist application of strict scrutiny to modern understandings of the operation of motivation specifically implicit bias. In other words, the operation of implicit bias in decision-makers, particularly government actors, is relevant to the application of strict scrutiny review--if discrimination can operate on an implicit level, then it is not intentional. If bias is largely implicit in the modern era, as some suggest, then the principle that discrimination must be intentional to hold parties liable may not be neutral as it would allow injustices to reproduce indefinitely. Finally, Part IV reviews the Trump decision, which does not apply strict scrutiny, and argues that compared to cases involving post-secondary education, the ultra-deference in the Trump case signals the confusion of today's contextual strict scrutiny.

[. . .]

With its decision in Trump v. Hawaii to not apply strict scrutiny review to the travel ban on the basis of the deference to executive authority used in Korematsu, the Court continues to promote the bifurcation behind the Adarand symmetry rationale and promotes indeterminacy in outcomes. This indeterminacy is the result of an avoidance of the systemic problems represented by evidence of disparate race-based impact that abound in our era of readily available data. In Adarand, the Court, perhaps seeking to assert consistency over race-conscious government policies, equated and conflated invidious and benign uses of race, by stating that strict scrutiny should apply in both contexts. In truth, however, benign versus invidious motivation in race-conscious policy represent opposite applications of race-consciousness. One is motivated by a desire to remedy discrimination while the other is meant to limit civil rights and civil liberties based on race, color, and national origin. They are not the same. To continue down this road will only lead to further injustices and the erosion of the principles of the rule of law as rule of law can only be stable when the type of due process that Carolene Products intended is enshrined in our approach to resolving Equal Protection claims.

Michael Chang is a Lecturer at the UC Berkeley Department of Ethnic Studies, and a government civil rights attorney. The views expressed in this piece are exclusive to those of the author and do not reflect the views of the author's employers.