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.
Reggie Oh & Frank Wu,
The Evolution of Race in the Law: The Supreme Court Moves from Approving Internment of Japanese Americans to Disapproving Affirmative Ation for African Americans,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol1/iss1/5