Reading questions for Monday, October 1

Hirabayashi v. United States

1.  The Court notes that the war power of the national government is “the power to wage war successfully.”  [Please note that there is an error in the course packet.  The quotation ends there and its author is former Chief Justice Charles Evans Hughes, who resigned from the Court in 1941.]  Do you agree or disagree with the Court that “it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” 
2. The Court then goes on to review the conditions which justify the government’s actions.  What were those conditions?   Why do you think the Court includes these conditions if it is not going to review the wisdom of those actions or substitute its judgment for theirs?
3.  The Court says “Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.”   Knowing what you do from Justice at War, was the Supreme Court misled in reaching this conclusion? 
4. The Court makes some comparisons to other restrictions of liberty.  Do you think these comparisons are similar to a curfew? 
5.  Why does the Supreme Court say that racial discrimination is allowable in this case? 
6.  The Court refers to “facts of public notoriety.”  This is similar to the lower courts taking “judicial notice” of common facts.  What facts do you think the Court is referring to?  How important are amicus briefs in establishing “facts of public notoriety”?  If there had been opportunities for more development of a record below, might the Court have seen these “facts” in a different light?

Korematsu v. United States

1.  In the first paragraph, the Court says that restrictions which curtail the civil rights of a single racial group are “immediately suspect” and must be subjected to “rigid scrutiny.”  How does this standard of review compare to the standard of review the Court used in Hirabayashi:  “It is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made.” Which standard is a higher burden for the government to meet?  Why do you think the Court is using different standards?
2.  Why does the Court accept that “it was impossible to bring about an immediate segregation of the disloyal from the loyal”? 
3.  Why does the Court conclude that Korematsu was not excluded from California “because of hostility to him or his race”?  Do you agree or disagree with the Court’s conclusion?
4.  In Justice Jackson’s dissent, he accepts that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”  Why, then, does he dissent?