Korematsu v' United States

1
Korematsu v. United States

• If Korematsu is wrongly decided, where did the
  Court go wrong?
• What is the legal standard the Court establishes
  for racial classifications, and why did the
  government meet it?

2
Cooper v. Aaron, reprise

• After Marbury, how should other government
  actors respond to a Supreme Court decision they
  believe to be wrongly decided?
• Would the Courts dicta in Cooper be right if, in
  1954, the Court had decided Brown differently,
  and the governor disagreed and issued a public
  statement deploring the decision and an Executive
  Order forbidding state funding to racially
  segregated schools?
• Would the dicta in Cooper be right if the
  governor today decided that experience with
  integration has not been successfully, and
  instead promoted a special program to fund urban
  academies for minority students specifically
  focused on meeting their educational needs?

3
Under-Enforced Constitutional Norms

• Sometimes the Court may stop short of applying
  the full scope of a constitutional provision,
  especially where doing so would cause friction
  with other departments of government.
• Perhaps the various government branches should
  engage in a dialogue on constitutional meaning
  (unless theyre a party to a court order)

4
Loving v. Virginia (1967) (CB p.182)

• Why is the states prohibition on interracial
  marriage discrimination? Virginias argument
  it treats whites and blacks equally, rational
  basis review should apply.
• How does the Court deal with the Framers intent?
• What is it, exactly, that violates Equal
  Protection?
• racial classifications lacking a sufficient
  purpose? (colorblindness)
• any laws (with racial classifications or not)
  with an invidious purpose? (i.e., measures
  designed to maintain White Supremacy? p.184)
  (purpose/ideology)
• measures that have the effect of stimulating
  prejudice against subordinated groups?
  (harm/anti-subordination)

5
Strict Scrutiny Doctrine

• Two-fold test
• ends compelling government interest
• -What counts as a compelling govt. interest?
  What doesnt?
• means challenged policy must be necessary to
  achieving that interest
• -How close a fit is required?

6
Why Strict Scrutiny for Race?

• What is it about racial discrimination (as
  opposed to the other kinds of classifications
  mentioned in Loving v. Virginia, p.183) that
  warrants heightened scrutiny?

7
Strict Scrutiny in all Contexts? California v.
Johnson

• Who has the better reading of the Courts
  precedent on race, the majority or the dissent?
• Should strict scrutiny apply in all contexts,
  including prisons? If some contexts should be
  excepted, what are they?