“Korematsu, Hirabayashi, and the Second Monster” by Eric L. Muller of the University of North Carolina School of Law is an article in an upcoming edition of the Texas Law Review.
Abstract: In June of 2018 the Supreme Court repudiated its notorious 1944 decision in Korematsu v. United States upholding the mass removal of Japanese Americans from the West Coast.
While some celebrated its demise and others doubted the Court’s sincerity, nobody paid attention to an equally odious decision that has hidden behind Korematsu: Hirabayashi v. United States. In that 1943 decision the Court unanimously upheld a lesser racial restriction on Japanese Americans, a dusk-to-dawn curfew.
Like Korematsu, that decision has never been overruled, but unlike Korematsu, it has never been deeply scrutinized or pervasively condemned. Hirabayashi survives, providing potential cover for all manner of racial rules less burdensome than removal, such as surveillance, identity cards, or house arrest.
The essay flushes Hirabayashi from the shadows, revealing it to be just as flawed as Korematsu, considerably more dangerous, and equally deserving of repudiation.