10.6092/issn.2531-6133/14434
Korematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme Court cases associated with the tragic internment of Japanese Americans during World War II, now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the worst constitutional law train-wrecks of American legal history. Ironically, American courts and judges also used the two towering internment cases for their resounding language supporting racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over America’s legal landscape. Thus, it may be somewhat surprising to discover that these two cases long led rather mundane and limited precedential lives in the federal circuit courts, serving repeatedly as precedents in ordinary cases concerning everyday applications of criminal procedure doctrines and displaying little of the brightly hopeful or darkly ominous power for which they would later be known. Whatever greater potential the two cases held, a careful tracking of all uses of the cases in court opinions shows that federal circuit courts mostly did not explore that potential until after it was “safe” to do so. In particular, although the Japanese Internment was fundamentally a legal and constitutional problem, federal courts proved to be largely unable to confront that problem meaningfully until after some sort of political “solution” was offered by Congress through formal apology and reparations to internment survivors in 1988. Only later did federal circuit judges use the two cases more aggressively, with Korematsu suddenly serving as a dire warning of the dangers of judicial reticence in resisting constitutional overreaching by the legislative or executive branches, while Hirabayashi was brandished to support strict, color-blind racial equality—long after civil rights progress was already waning.
application/pdf
2531-6133
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Scott Hamilton Dewey
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University of Bologna Law Review
Japanese American Internment
The Banality of Evil (?): The Strange(ly Quiet) Careers of Korematsu and Hirabayashi in the Federal Circuit Courts, 1943‐2016
Text.Serial.Journal
https://bolognalawreview.unibo.it/
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Articles & Essays
2022-02-22
2022-02-17
2021-11-10
2022-02-22
287-366
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Scott Hamilton Dewey
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Japanese American Internment
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The Banality of Evil (?): The Strange(ly Quiet) Careers of Korematsu and Hirabayashi in the Federal Circuit Courts, 1943‐2016
https://bolognalawreview.unibo.it/article/download/14434/13941
6
llVOLUME 6                                  llISSUE 2                       ARTICLES & ESSAYS



                           UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/14434

             Received: 6 Febr. 2021 | Accepted: 11 Mar. 2021 | Published: 22 Febr. 2022

                                                 A

       The Banality of Evil (?): The Strange(ly Quiet) Careers of
       Korematsu and Hirabayashi in the Federal Circuit Courts,
                                         1943‐2016


                                   SCOTT HAMILTON DEWEY
Scott Hamilton Dewey, Ph.D. in Postwar U.S. Environmental History (Rice University, U.S.A.), J.D.
and M.L.I.S. (U.C.L.A., U.S.A.), is Faculty Research Librarian at the University of Minnesota Law
Library (U.S.A.). He has previously held the same position at the U.C.L.A. Law Library/School, and
been a judicial attorney for the California Court of Appeal. He is an internationally recognized
expert on the history of air pollution control in the United States post-1945 and is the author of
“Don’t Breathe the Air: Air Pollution and U.S. Environmental Politics, 1945-1970”, Texas A&M
University Press (2000).

 @ shdewey@umn.edu
  ID
       0000-0001-7110-1499


                                            ABSTRACT

Korematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme
Court cases associated with the tragic internment of Japanese Americans during World War II,
now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the
worst constitutional law train-wrecks of American legal history. Ironically, American courts and
judges also used the two towering internment cases for their resounding language supporting
racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over
America’s legal landscape. Thus, it may be somewhat surprising to discover that these two cases
long led rather mundane and limited precedential lives in the federal circuit courts, serving
repeatedly as precedents in ordinary cases concerning everyday applications of criminal
procedure doctrines and displaying little of the brightly hopeful or darkly ominous power for
which they would later be known. Whatever greater potential the two cases held, a careful
tracking of all uses of the cases in court opinions shows that federal circuit courts mostly did not
explore that potential until after it was “safe” to do so. In particular, although the Japanese
Internment was fundamentally a legal and constitutional problem, federal courts proved to be
largely unable to confront that problem meaningfully until after some sort of political “solution”
was offered by Congress through formal apology and reparations to internment survivors in 1988.
Only later did federal circuit judges use the two cases more aggressively, with Korematsu suddenly
serving as a dire warning of the dangers of judicial reticence in resisting constitutional
overreaching by the legislative or executive branches, while Hirabayashi was brandished to
support strict, color-blind racial equality—long after civil rights progress was already waning.




                                                287
llVOLUME 6                                     llISSUE 2                          ARTICLES & ESSAYS



                                               KEYWORDS
    Korematsu; Hirabayashi; Law of the United States; United States Federal Courts; Japanese American
                                              Internment




                                          TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     289
1. Korematsu (1943): Probation as a Final, Appealable Judgment . . . . . . . . . . . . . . . . .         294
        1.1. Korematsu (1943): Use Patterns . . . . . . . . . . . . . . . . . . . . . . . . . . . .      296
        1.2. Korematsu (1943): Quotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      297
        1.3. Korematsu (1943): Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    298
2. Hirabayashi: Just Another Routine Criminal Procedure Precedent (?) . . . . . . . . . . . .            300
        2.1. Hirabayashi: Use in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     301
        2.2. Hirabayashi: Use Patterns by Jurisdiction . . . . . . . . . . . . . . . . . . . . . .       304
        2.3. Hirabayashi: Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   310
           2.3.1. Criminal Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     310
           2.3.2. Disloyalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   312
           2.3.3. Civil Rights Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     313
           2.3.4. Immigration and Naturalization . . . . . . . . . . . . . . . . . . . . . . . .         314
        2.4. Hirabayashi: Judges/Opinion Writers . . . . . . . . . . . . . . . . . . . . . . . . .       315
        2.5. Hirabayashi: Quotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     317
        2.6. Hirabayashi: Use in Concurrences or Dissents . . . . . . . . . . . . . . . . . . . .        320
        2.7. Hirabayashi: Co-Citing of Other Cases . . . . . . . . . . . . . . . . . . . . . . . .       321
3. Korematsu (1944): Mind the Gap! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       322
        3.1. Korematsu: Use in General, 1945-1980 . . . . . . . . . . . . . . . . . . . . . . . .        322
           3.1.1. Civil Rights Cases, 1966-1980: . . . . . . . . . . . . . . . . . . . . . . . . . .     326
        3.2. Korematsu: Use in General, 1981-2016 . . . . . . . . . . . . . . . . . . . . . . . .        328
           3.2.1. Civil Rights Cases, 1981-2016: . . . . . . . . . . . . . . . . . . . . . . . . . .     331
        3.3. Korematsu: Use as a Proxy for Racial Classifications, and Other Uses . . . . . . . .        334
        3.4. Korematsu: Judges/Opinion Writers . . . . . . . . . . . . . . . . . . . . . . . .           338
        3.5. Korematsu: Quotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       340
        3.6. Korematsu: Use in Concurrences or Dissents . . . . . . . . . . . . . . . . . . . .          345
        3.7. Korematsu: Use of Concurrences or Dissents from Korematsu Itself . . . . . . .              346
        3.8. Korematsu: Depth of Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       346
        3.9. Korematsu: Co-Citing of Other Cases . . . . . . . . . . . . . . . . . . . . . . . .         351
4. A Comparison of Circuit Court Uses of Korematsu and Hirabayashi with Historical Trends
   and Supreme Court Uses, 1943-2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         353
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     357




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     INTRODUCTION



Korematsu v. United States2 and Hirabayashi v. United States,3 the best-known, most salient
court cases and opinions associated with the tragic and unnecessary internment of 120,000
Japanese Americans during World War II, loom large over America’s legal landscape. To
paraphrase President Franklin Roosevelt’s famous description of the Pearl Harbor attack
of December 7, 1941 that initially set the internment tragedy in motion, Korematsu and
Hirabayashi now live in infamy.4 They are mostly mentioned for rhetorical purposes, often
in conjunction with the likes of Plessy v. Ferguson5 and Scott v. Sandford (the Dred Scott case),6
as grave warnings to present-day judges against perpetuating the sorts of constitutional
law train-wrecks of which the nation and its legal profession are now ashamed.
          That dark vision of the internment cases is a relatively new development, though,
dating mostly to the period after the United States Congress made its formal apology and
reparations to internment survivors in 1988.7 Earlier, and perhaps somewhat ironically,
the cases had a seemingly brighter, nobler role as the sources of resounding language that
was used to batter down the walls of segregation and was woven into the Supreme Court’s
doctrine of strict scrutiny of racial and other constitutionally suspect classifications.




  [⋆ ]Readers familiar with the history and historiography of the 1950s may readily recognize “The Strange
  Career” as a reference to a brief but classic study by the long-time “dean” of U.S. Southern History, C. Vann
  Woodward, The Strange Career of Jim Crow (1955)—a study that Woodward initially prepared as a series
  of lectures to challenge the historical basis of de jure segregation in the wake of the 1954 Brown v. Board
  decision. [And before that, Woodward and other like-minded historical scholars offered similar analysis to
  the U.S. Supreme Court as a brief in support of the Brown litigation, but that research was largely ignored
  by the Court]. Woodward set out to demonstrate how, contrary to entrenched assumptions of the 1940s-50s
  that Jim Crow racial segregation (in the U.S. South and elsewhere) always had been natural and inevitable, it
  was, instead, very much a product of particular historical developments that could have been avoided. For
  brief background on the “strange career” of The Strange Career of Jim Crow see, e.g., Howard N. Rabinowitz,
  More Than the Woodward Thesis: Assessing the Strange Career of Jim Crow, 75 J. AM. HIST. 842 (1988); Jack
  Pole, On C. Vann Woodward, 32 J. AM. STUD. 503 (1998).
2
  Korematsu v. United States, 323 U.S. 214 (1944).
3
  Hirabayashi v. United States, 320 U.S. 81 (1943).
4
  Although a crucial part of the same massive and tragic course of events, Hirabayashi has never yet acquired
  quite the same symbolic status and name recognition as Korematsu—which is why, throughout this study,
  even though Hirabayashi came earlier in time and in the alphabet than the main Korematsu opinion of 1944,
  Korematsu is usually listed first. Notably, Microsoft Word recognizes Korematsu and leaves it unchallenged as
  a possible spelling error, unlike Hirabayashi.
5
  Plessy v. Ferguson, 163 U.S. 537 (1896).
6
  Dred Scott v. Sandford, 60 U.S. 393 (1857).
7
  See Civil Liberties Act of 1988, 50 U.S.C. app. §§ 1989b–1989b9 (current version as amended at 50 U.S.C. §§
  4211–4220 (2012 & Supp. III 2015).


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                                            THE BANALITY OF EVIL ?


To the extent that the federal courts’ by now extensive edifice of strict scrutiny law is a
positive outcome, Korematsu and Hirabayashi, and their numerous precedential progeny,
necessarily deserve substantial credit.8
           That Korematsu and Hirabayashi ultimately have been harnessed to such powerful
if contrasting rhetorical and legal purposes suggests that the potential was always there
for them to be so used—they held those possibilities within them.9 That in turn makes
it potentially interesting to explore all the various ways the cases were in fact used, and
when, and why the already existing potential uses with which we are now familiar long
lay dormant before suddenly switching on and becoming active at particular moments in
time.
           The following study thus traces all identifiable uses of the two best-known
internment cases by the various federal circuit courts of appeal from the 1940s, when the
opinions in question first appeared, through the 2010s. It seeks to trace any recognizable
and potentially interesting patterns and relationships regarding the several hundred
circuit opinions that have cited Korematsu, Hirabayashi, or both, and thereby to illuminate
the entire precedential life cycles of these important and tragic cases at the intermediate
appellate level. This study builds upon an earlier, detailed study of all identifiable uses of
the cases at the Supreme Court level,10 the full results of which mostly need not be
repeated here, other than to point out ways in which activity at the Supreme Court level
appeared to drive or otherwise interact with activity at the circuit level. The overall
timing and nature of uses of the opinions also are tracked in close conjunction with
wider trends and changes in the evolution of United States political and social history
during the post-World War II decades. Among other things, the study monitors whether
and to what extent the circuit courts and judges may have taken a lead over the Supreme
Court in exploring the potential uses of the cases.
           The detailed analysis of just what was happening with the major internment
cases in the federal circuit courts, and when, is based upon three relatively large and

8
   Although to the extent that strict scrutiny has gone beyond the appropriate protection of civil rights to
   be used to systematically suffocate efforts toward addressing systemic structural racism, as some scholars
   have argued, any such credit is substantially diminished. See, e.g., Neil Gotanda, A Critique of “Our Constitution
   is Color-Blind”, 44 STAN. L. REV. 1, 2–3 (1991); Sonu Bedi, Collapsing Suspect Class with Suspect Classification: Why
   Strict Scrutiny is Too Strict and Maybe Not Strict Enough, 47 GA. L. REV. 301, 303–07 (2013). ; See e.g., Tanya
   Washington, Jurisprudential Ties That Blind: The Means to End Affirmative Action, 31 Harv. J. Racial & Ethnic Just.
   Online 1. (2015); see also David Schraub, Unsuspecting, 96 B.U. L. REV. 361 (2016).
 9
   To quote an ancient, allegedly Zen Buddhist (or perhaps Theosophist?) saying that reflects on why wisdom
   or meaning that was always already there is suddenly discovered: “When the student is ready, the teacher
   will come”. The origins of this pithy observation, sometimes attributed to the Buddha himself, are shrouded
   in the mists of time and remain discussed and debated on the Internet, as a quick search reveals.
10
   See Scott Hamilton Dewey, Of Loaded Weapons and Legal Alchemy, Great Cases and Bad Law: Korematsu and Strict
   Scrutiny, 1944-2017, 3 L. INFO. REV. 43 (2017-2018).


                                                          290
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                [Vol. 6:2


complex spreadsheets11 that track data from Korematsu v. United States (1943),12 the first
iteration of the Korematsu litigation to reach the Supreme Court, along with the
better-remembered Korematsu (1944) and Hirabayashi. In addition to the names and
citation information of later federal circuit court opinions citing any of these three
Supreme Court opinions, the spreadsheets include other information, such as: the date
of the citing opinion; which circuit it came from; which judge wrote the opinion; which
judges were other members of the panel that issued the opinion; what, generally, the
cases that produced citing opinions were about; what particular purposes the Korematsu
or Hirabayashi opinions were used for; whether the internment cases were quoted or not;
what depth of use they were given (whether only brief, passing references or more
extensive use); whether these uses appeared in main opinions or concurring or
dissenting opinions in the later citing cases; whether the citing opinions cited the main
opinions or concurrences or dissents from the Supreme Court opinions; and whether the
citing opinions also co-cited any from a group of conceptually related cases involving
civil rights or the denial thereof or other notable cases involving Japanese Americans
from the 1940s. These various categories were tracked to see what, if any, results and
patterns they produced over time among several hundred citing opinions.                 This
monitoring of a range of data categories seeks to try to replace an otherwise
impressionistic, sporadic, anecdotal overview of the major cases and their circuit-court
life-cycles with one potentially revealing larger patterns supported by quantitative
evidence.         As with various “harder” sciences—such as biological or pharmaceutical
research where large and repeated batteries of tests and countless test tubes often only
show no noteworthy results—this laborious approach is designed to show when things
are not happening as well as when they are, under the reasoning that non-events, or
relatively mundane or unexpected developments, are potentially significant parts of the
overall story along with those that fit more established legal-historical narratives.
             Thereafter, the study turns to the case-specific data. Section 1 concerns the
relatively little-remembered Korematsu (1943)—the Korematsu litigation’s first appearance
at the United States [hereinafter U.S.] Supreme Court—which never gained the rhetorical
clout or notoriety of its better-known companions but wound up being frequently cited
on general issues of criminal procedure related to probation as an appealable final
judgment. Section 2 discusses Hirabayashi (1943), which like Korematsu (1943) actually
spent most of its life and did the overwhelming majority of its work as a routine opinion
involving criminal procedure and concurrent sentences before being discovered for
other purposes rather later. During the entire period from 1950-1980, Hirabayashi was
11
     [These spreadsheets are available on request].
12
     Korematsu v. United States, 319 U.S. 432 (1943).


                                                        291
                                           THE BANALITY OF EVIL ?


only very rarely used for its non-discrimination potential and almost never received
more than a very brief, passing reference, instead mostly living in comfortable
anonymity. Section 3 follows the best-known of the internment cases, Korematsu (1944)
[hereinafter simply Korematsu unless otherwise specified], which, after appearing in a
small flurry of cases cleaning up bits and pieces of the aftermath of the Second World
War from 1945-1950, lay entirely dormant in the federal circuits until 1966, when it was
mentioned briefly in passing and was confused with Hirabayashi. [Notably, the circuits
for twelve years ignored the Supreme Court’s key invocation of Korematsu in the crucial
case of Bolling v. Sharpe (1954), which represented Korematsu’s big debut as a civil rights
precedent in the high Court]. From 1966 through 1980, Korematsu appeared, usually only
in a very brief, passing reference, in a long list of cases usually reciting one or more
aspects of the Supreme Court’s gradually evolving new strict scrutiny standard. There
was almost no whisper of criticism of Korematsu or Hirabayashi or exploration of their
dark rhetorical potential until well into the 1980s, when it (rather suddenly) became safe
and fashionable to do so. Section 4 then matches the wider historical timeline with those
of the various cases to consider the specific patterns and trajectories associated with the
three interment cases in the context of wider observable trends in America’s political,
social, and cultural history and legal evolution during the postwar era.
             The long strings of relatively mundane and briefly passing uses of Korematsu and
Hirabayashi, together with the overall obliviousness to their darker meaning and
rhetorical potential before the 1980s, is the basis for the title of this study, which
borrows philosopher Hannah Arendt’s famous observation about captured fugitive Nazi
Adolf Eichmann, principal architect of Nazi Germany’s program to exterminate Jews and
other “social undesirables” in death camps such as Auschwitz, at his 1961 trial for crimes
against humanity in Israel: “The banality of evil”13 [Or in other words, and to admittedly
oversimplify Arendt’s much more complex message:                            Eichmann, who helped to
perpetrate so much darkness and horror upon the world, far from being a towering, evil
demon, was really just quite a common, unimpressive little man who saw himself as just
“doing his job”]. Given all the more recent judicial statements of horror and warning
regarding Korematsu and Hirabayashi, it is perhaps a little surprising and ironic that they

13
      HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL(1963). Full-length biographies of
     Eichmann are available, including BETTINA STANGNETH, EICHMANN BEFORE JERUSALEM: THE UNEXAMINED LIFE OF
     A MASS MURDERER(RUTH MARTIN TRANSL., ALFRED A. KNOPF ED. 2014). AND DAVID CESARANI, BECOMING EICHMANN
     : RETHINKING THE LIFE, CRIMES, AND TRIAL OF A “DESK MURDERER” (Da Capo Press 1st ed. 2007) (2004). For a
     very brief, accessible discussion of both the life of Eichmann and Arendt’s thoughts regarding the banality
     of evil, Stephen J. Whitfield, Hannah Arendt and the Banality of Evil, 14 HIST. TCHR. 469 (1981). Arendt’s
     book, undertaken as a reporter for the New Yorker, is considered an important work of twentieth century
     philosophy, still much discussed and debated—making it that much more dangerous (and foolhardy?) to try
     to summarize it in a brief, simple sentence.


                                                       292
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 6:2


so long led relatively commonplace precedential lives, drawing comparatively little
specific attention, and almost no attention to the dark potential meaning they
represented.            The ordinary processes of the law tended to turn them into
ordinary-looking, garden-variety cases, so one might not have been especially aware that
they were in fact the sorts of “great” cases that make “bad” law.14
             This study admittedly was undertaken in hopes that there might be more of
dramatic interest to discuss earlier in the lives of the cases—but mostly, that was not the
case. Yet perhaps this conspicuous absence is a story in itself. In particular, at its outset,
this study was partly motivated by curiosity as to whether circuit judges might have
shown some degree of leadership in harnessing either or both of the cases to more
powerful rhetorical purposes, either on behalf of the forward march of civil rights or as
dark warnings regarding the denial of civil rights. Basically, they did not, and instead
mostly followed the lead of either the Supreme Court or, later, of Congress at a relatively
safe distance—saying what had become the “right” things to say about the cases only
after it had become safe to do so. This may be a relatively unsurprising performance
from a generally well-disciplined judiciary that mostly expects to receive and follow
signals and orders from above and views that as its proper institutional mission. Yet the
same sort of professional reticence (or selective blindness?) ironically may also help to
illuminate how the whole tragic mess surrounding the internment cases arose in the first
place, with first lower federal judges and then ultimately even the Supreme Court
marching mostly in step with legislative and executive authority and with the prevailing
political mood of the times—in precisely the manner that the present-day rhetoric of
Korematsu and Hirabayashi as constitutional train-wrecks so vociferously warns against.
             In short: if the original federal district, circuit, and Supreme Court decisions
regarding Korematsu and Hirabayashi were terrible mistakes, then they were not the only
mistakes; so were the prolonged judicial silence and effective sweeping of the matters
under the carpet for the next forty years. The historical record suggests that the
American judiciary had a chronic inability to fix, or even to confront, any of these
mistakes. Much later rhetorical fulminations, long after the fact, against Korematsu and
Hirabayashi—either with or without rhetorical invocations of possibly even heavier
rhetorical bludgeons such as Plessy and Dred Scott—do little to change that record.




14
     A reference to Justice Oliver Wendell Holmes, Jr.’s famous quote in Northern Securities Co. v. United States,
     193 U.S. 197, 400 (1904) (Holmes, J., dissenting).


                                                        293
                                             THE BANALITY OF EVIL ?


       1.      KOREMATSU (1943): PROBATION AS A FINAL, APPEALABLE
       JUDGMENT

The first iteration of Korematsu at the Supreme Court—in which Fred Korematsu initially
was found guilty of remaining in the California Bay Area city of San Leandro in violation
of the internment-related executive orders and was given five years’ probation15 —is the
briefest and most mundane of the trio of internment opinions addressed in this study and
may be of less interest to modern readers who already are aware how the life stories of the
cases ultimately turned out. It was cited by federal circuit courts a total of forty-four times
between March 1944 and July 2014. The first batch of these uses came when one might
usually expect to see most use of a new authority: when the opinion was fresh and had
not yet been supplanted by later decisions making similar holdings on related issues (the
ongoing process of earlier precedents often becoming buried and invisible in the sediment
of later precedents).16 Of the ten citations of Korematsu (1943) during 1944-1950, five of
the citing cases appeared in 1944 alone, the other five scattered fairly evenly from 1945-
1950. With the sole exception of the first use, which mentioned both Korematsu (1943)
and Hirabayashi as supporting federal war powers, the others all cited Korematsu (1943)
briefly in passing regarding probation, final judgments, or (more often) both. The case was
cited eight more times for the same purposes between 1954 and 1968, with five of those
from 1954-1957, the other three, 1960-1968. The 1960 use was the only one to go beyond
the usual brief passing reference to offer a substantial quotation from Korematsu (1943)
regarding the issue at hand. The gradually dwindling visible use of Korematsu (1943) from
1944 to 1968 tended to suggest that it was headed toward having a relatively conventional
precedential life cycle of being gradually supplanted and forgotten.17
            But Korematsu (1943) had a second act between 1971 and 1985, probably as a
result of the visible surges in crime rates and drug use brought by Baby Boomers


15
   See Korematsu v. United States, 319 U.S. 432, 432-435 (June 1, 1943). Authored by Justice Hugo Black like the
   later, main Korematsu opinion (1944), Korematsu (1943) did not address wider constitutional issues and stayed
   quite close to the immediate issues of conviction and probation. The exclusion and internment orders at
   issue are only cited and alluded to and are not discussed at any length.
16
   For examples of the origins of legal doctrines getting buried under later precedents repeating the same or
   similar points, see, e.g., Scott Hamilton Dewey, The Case of the Missing Holding: The Misreading of Zafiro v. United
   States, the Misreplication of Precedent, and the Misfiring of Judicial Process in Federal Jurisprudence on the Doctrine
   of Mutually Exclusive Defenses, 41 VALPARAISO UNIV. L. REV. 149, 216-18 (2006) [hereinafter Dewey, The Case of
   the Missing Holding]. ; Scott Hamilton Dewey, How Judges Don’t Think: The Inadvertent Misuse of Precedent in the
   Strange Career of the Illinois Doctrine of Antagonistic Defenses, 1876-1985, 9 J. JURIS. 59 (2011) [hereinafter Dewey,
   How Judges Don’t Think].
17
   An earlier example of an authority with a related holding, which appeared in conjunction with Korematsu
   (1943) more than once, is Berman v. United States, 302 U.S. 211 (1937). Examples of various later opinions
   available to replace Korematsu (1943) include Oksanen v. United States, 362 F.2d 74, 80 (8th Cir. 1966); United
   States v. Stephens, 449 F.2d 103 (9th Cir. 1971); United States v. Bynoe, 562 F.2d 126, 128 (1st Cir. 1977).


                                                           294
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 6:2


approaching (if in some cases perhaps never quite attaining?) adulthood.18 Korematsu
(1943) was cited an additional twenty times between 1971 and 1985, eight of those just
from 1971-1973. Six of the cases from 1971 to 1980 were federal drug prosecutions, back
then known as “narcotics” cases, suggesting that federal courts may have been
encountering and experimenting with expanded use of probation in addressing the new
wave of drug use.            This period also saw some deeper discussion of the issues and
considerations involved, with some courts and cases finding situations where the earlier
standard brief judicial rubber stamp—probation = final appealable judgment—might not
apply so neatly.          Particularly in the latter part of that period, from 1977 to 1984,
Korematsu (1943) saw five out of the nine more substantial quotations it would receive
from federal circuits (while three out of the remaining four came from the post-2001
period).
           Korematsu (1943) notably vanished from federal circuit court opinions entirely
from mid-1985 through mid-2001, likely due to heightened judicial and general public
awareness of the whole process that led to both the official exoneration of famous
former defendants such as Fred Korematsu and Gordon Hirabayashi and ultimately the
formal Congressional apology and reparations to Japanese American internment
survivors in 1988.19 For a time at least, the very name “Korematsu” may have been
recognized as sufficiently toxic, even radioactive, that both judges and lawyers may have
avoided using it in any form for any normal legal purpose. Yet, perhaps after the novelty
of the dramatic developments in the 1980s started to wear off, Korematsu (1943)
nevertheless began to reappear and was again routinely cited as authority in its usual
role regarding probation and/or final judgment six more times from 2001-2014 before
again vanishing from federal circuit jurisprudence, perhaps forever.20




18
   For discussion and statistics regarding the general and violent crime surges of the 1960s-70s, See THOMAS
   BYRNE EDSALL Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes On American Politics
   110-13 (1991).
19
   For a brief overview of these developments, see Dewey, supra note 10, at 91-94. A fuller discussion of these
   matters may be found, among other places, in the major cases of the exoneration/reparations era: Hohri v.
   United States, 782 F.2d 227 (D.C. Cir. 1986); Hohri v. United States, 793 F.2d 304 (D.C. Cir. 1986); Hirabayashi
   v. United States, 828 F.2d 591 (9th Cir. 1987); Hohri v. United States, 847 F.2d 779 (Fed. Cir. 1988).
20
   Korematsu (1943) has continued to have a quite active career in state courts since 2000, however, as a Westlaw
   search for citations of the opinion readily shows. Korematsu (1943) appears frequently in briefs as well as in
   state court opinions. See, e.g., People v. Henriques, 828 N.Y.S.2d 86, 88 (N.Y.S. Ap. Div. 2006); State v. Whittle,
   145 P.3d 211, Idaho 49, 53 (Idaho Ap. Ct. 2007); Sena v. State, 233 P.2d 993, 999 (Wyoming Sup. Ct. 2010);
   Arizona v. Watson, 248 Ariz. 208, 218 (Ariz. Ct. Ap. 2020); State v. Craig, 159 Ohio St.3d 398, 409 (Ohio Sup.
   Ct. 2020) (Kennedy, J., conc.).


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                                            THE BANALITY OF EVIL ?


     1.1. KOREMATSU (1943): USE PATTERNS

In the end, Korematsu (1943) was used by federal circuits twenty-one times to support the
proposition that probation represents an appealable final judgment,21 along with various
other related permutations of the same overall concept (probation alone, fourteen
times;22 final judgment alone, five times;23 probation = final judgment (without
“appealable”), one time24 ). One other opinion used Korematsu (1943) in debating the
whole issue,25 while another used Korematsu (1943) in finding that probation did not
constitute a final judgment, at least not in that case.26 Only the very first use in 1944
invoked Korematsu (1943) for federal war powers.27
           No particularly clear or distinctive patterns emerge regarding use of Korematsu
(1943) by particular circuits or individual judges. All circuits that typically review
standard federal crime cases (so, all but the Federal Circuit) used Korematsu (1943) as
precedent, mostly scattered fairly even through time.28 The Ninth and Third Circuits
used Korematsu (1943) relatively more (nine times and seven times, respectively); the
Sixth and Tenth Circuits barely at all (one time each). The northeastern circuits all used
Korematsu (1943) more frequently overall than the more “Heartland” circuits, with the
exception of the Seventh (five times); this could indicate a greater concentration of uses
(and perhaps of drug cases?) in more heavily urban regions, or perhaps a greater
openness to making probation available in certain jurisdictions, but it also might just

21
   See, e.g, Arbuckle v. United States, 146 F.2d 657, 660 (D.C. Cir. 1945); United States v. Lombardo, 174 F.2d 575
   (7th Cir. 1949); Tanzer v. United States, 278 F.2d 137, 139 (9th Cir. 1960); United States v. Corson, 449 F.2d
   544, 550 (3d Cir. 1971); United States v. Stine, 646 F.2d 839, 846 n.15 (3d Cir. 1981).
22
   See generally Boufford v. United States, 239 F.2d 841, 844 (1st Cir. 1956); United States v. Birnbaum, 402 F.2d
   24, 29 (2d Cir. 1968); United States v. Carson, 669 F.2d 216, 217 (5th Cir. 1982).
23
   See generally U.S. ex rel. Randall v. U.S. Marshall for Eastern Dist. of New York, 143 F.2d 830, 831 (2d Cir. 1944);
   James v. United States, 348 F.2d 430, 432 (10th Cir. 1965); United States v. Elkin, 731 F.2d 1005, 1010 n.4 (2d
   Cir. 1984).
24
   See Phillips v. United States, 212 F.2d 327, 335 (8th Cir. 1954).
25
   SeeJenkins v. United States, 555 F.2d 1188, 1189-91 (4th Cir. 1977) (discussion includes both main opinion
   and Bryan, J., diss.) (the issue here was complicated by involving a conviction under the Youth Corrections
   Act and the main opinion’s interpretation of statutory language and legislative history in that particular
   context to contradict the holding in Korematsu (1943); the dissent disagreed). Other fuller discussions of the
   significance of probation in the context of a suspended sentence, and the implications for double jeopardy,
   multiple probationary periods, and other issues when probation is revoked, appear in United States v. Fultz,
   482 F.2d 1 (8th Cir. 1973) and United States v. Lancer, 508 F.2d 719, 737-42 (3d Cir. 1975) (Hunter, J., and
   Forman, J., separately dissenting).
26
   See generally United States v. Gras, 446 F.2d 7, 9 (5th Cir. 1971) (citing in support United States v. Lecato, 29
   F2d 694, 695 (2d Cir. 1928), which was expressly disapproved of by the Supreme Court in Korematsu (1943)).
   [Judge Learned Hand, no less, was the opinion-writer in Lecato].
27
   See Alexander v. De Witt, 141 F.2d 573, 574 n.2 (9th Cir. 1944).
28
   Cumulative usage rates of Korematsu (1943) among the various circuits were as follows: First Circuit: five
   times; Second Circuit: four times; Third Circuit: seven times; Fourth Circuit: two times; Fifth Circuit: three
   times; Sixth Circuit: one time; Seventh Circuit: five times; Eighth Circuit: three times; Ninth Circuit: nine
   times; Tenth Circuit: one time; Eleventh Circuit: two times; D.C. Circuit: two times.


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mean that the other circuits were using other authorities for the same purpose. Four of
the Ninth Circuit’s nine uses came just during 1944-45, when Korematsu (1943) was a quite
fresh authority that recently had emerged from that circuit, and three of those four
opinions were authored by Judge Mathews, while the fourth came from a panel that
included Mathews. Five of the Third Circuit’s seven total uses all came between 1971 and
1981, two of them authored by Judge Adams (1972, 1980) and one from a panel on which
Adams was the senior judge (1981).                      Two of the First Circuit’s five uses involved
immigration/deportation cases in the mid-1950s, both authored by Judge Magruder.
Judge Tjoflat used the case twice in 1982, first as a member of the Fifth Circuit, later as a
new member of the newly established Eleventh Circuit.29 Only two other judges used
Korematsu (1943) twice, in both cases widely separated in time (Judge Sloviter, Third
Circuit, 1981, 2005; Judge Merrill, Ninth Circuit, 1960, 1971). Six different circuits were
among those that belatedly rediscovered Korematsu (1943) between 2001-2015 (the First,
Third, Sixth, Seventh, Ninth, and Eleventh). Such limited, weak relationships are the
closest the data comes to indicating any wider patterns in use of Korematsu (1943)
between various judges and jurisdictions.



     1.2. KOREMATSU (1943): QUOTES

Korematsu (1943) was quoted a total of thirteen times out of the forty-four uses, four of
those only brief, passing references, the others more substantial. Only the First Circuit
quoted it three times, two of those only quite briefly; the Third and Ninth Circuits twice;
the Seventh, Tenth, and District of Columbia [hereinafter D.C.] Circuits never. The most
popular quote, appearing six times, characterized probation as “an authorized mode of
mild and ambulatory punishment”; three of those opinions added, “intended as a
reforming discipline”. Two such quotations came relatively early (1950, 1954); four of
them appeared later (1982, 1984, 2004, 2005); all were scattered among various different
circuits. That particular quote generally was used to establish that probation is indeed a
form of punishment, which justifies treating a suspended sentence, with probation, as
nevertheless a final, appealable judgment—in other words, no differently from formal
imposition of a sentence followed by probation.30 Three other opinions quoted Korematsu
(1943)’s language regarding “certainly when discipline has been imposed, the defendant
is entitled to review” (1984, 2001, 2014).31

29
   On the history of the creation of the Eleventh Circuit out of the former, larger “old” Fifth Circuit, see, e.g.,
   Thomas E. Baker, A Legislative History of the Creation of the Eleventh Circuit, 8 GA. STATE UNIV. L. REV. 457 (1992).
30
   See, e.g., Kennick v. Superior Court of State of Cal., Los Angeles County, 736 F.2d 1277, 1282 (9th Cir. 1984).
31
   See, e.g., United States v. Elkin, 731 F.2d 1005, 1010 n.4 (2d Cir. 1984).


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                                          THE BANALITY OF EVIL ?


Two circuits quoted Korematsu (1943) for “the difference to the probationer between
imposition of sentence followed by probation [. . .] and suspension of the imposition of
sentence [. . .] is one of trifling degree” (1977, 1980).32 Only three quotations, two quite
brief, appeared between 1950 and 1960, while nine surfaced from 1977 onward; this
might only tend to reflect the vast overall lengthening of court opinions between the
early postwar years and more recent decades.33



     1.3. KOREMATSU (1943): ISSUES

Regarding issues addressed in the various cases citing Korematsu (1943), aside from eight
narcotics cases (one in 1960, one in 2014, and the other six from 1971-1980), few patterns
are discernable among a wide array of relatively ordinary criminal prosecutions. Next
closest to a “cluster” were three bank robbery cases; otherwise, there were various cases
involving mail fraud, wire fraud, bank fraud, embezzlement, interstate transportation of
stolen cars or other stolen goods known to be stolen, tax evasion, tax bribery, and at
least one moonshine liquor case.34 There were relatively few other, more serious cases,
such as a 2005 case concerning the rape/murder of an underage female,35 or a 1981 case
involving illegal receipt of a firearm by a felon.36 Some cases reflect their particular
times: for instance, two cases involved illegal sale of meat contrary to rationing
established by the wartime Office of Price Administration to prevent runaway price
inflation on scarce commodities during wartime;37 and one defendant who was
convicted under Federal Prohibition laws before the Twenty-First Amendment repealed
the Eighteenth Amendment in 1933, and who fled the United States before being sent to
prison, was held to still be liable for his Prohibition prison time when he returned years
later, notwithstanding his argument that Prohibition had since been repealed.38 The
earliest case, from March 1944, involved violation of the War Department’s wartime
exclusion order by a non-Japanese American, apparently an Anglo suspected of

32
   United States v. Bynoe, 562 F.2d 126, 128 (1st Cir. 1977); United States v. Johnson, 634 F.2d 94, 95-96 n.4 (3d
   Cir. 1980).
33
   For a (commendably concise) commentary on this issue, including various lengthening-related statistics,
   see, e.g., Gerald Lebovits, Short Judicial Opinions: The Weight of Authority, 76 N.Y. STATE BAR J. 64 (2004). As
   Lebovits notes, there were also complaints about this process since 1899 if not earlier. See, e.g., Herbert B.
   Gregory, Shorter Judicial Opinions, 34 Va. L. Rev. 362 (Apr. 1948). To paraphrase “Jazz Singer” Al Jolson: They
   hadn’t seen nothin’ yet.
34
   See Martin v. United States, 183 F.2d 436, 439 (4th Cir. 1950).
35
   See Mickens-Thomas v. Martinez, 2005 WL 1586212 (Slip Copy) (3d Cir. 2005) (Sloviter, J.).
36
   See United States v. Stine, 646 F.2d 839, 846 n.15 (3d Cir. 1981) (Sloviter, J.).
37
   See Rosensweig v. United States, 144 F.2d 30, 33 (9th Cir. 1944); United States v. Beekman, 155 F.2d 580, 583
   (2d Cir. 1946).
38
   See United States ex rel. Randall v. U. S. Marshall for Eastern Dist. of New York, 143 F.2d 830, 831 (2d Cir.
   1944) (Augustus N. Hand, J.).


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radicalism who lived near the various important U.S. naval stations at San Diego and the
Marine base at Camp Pendleton.39 A 1973 case involved a Vietnam draft-dodger.40 Two
cases, both from the mid-1950s and from the First Circuit, involved immigration, one
concerning a false statement made under oath to immigration authorities, the other the
deportation of an Italian national with a criminal record.41
           Viewing this laundry list of mostly unrelated and relatively insignificant cases
and opinions, readers might (appropriately) be inclined to dismiss it as much ado about
nothing,42 or perhaps as the dog that didn’t bark.43 Whatever its wider possible legal and
rhetorical potential, Korematsu (1943) basically remained narrowly limited in its
precedential role as a relatively routine judicial rubber stamp regarding the specific
criminal procedure issues of probation and final judgment.                             Grinding through the
(perhaps unnecessary and unwelcome) details of quantitative analysis on Korematsu
(1943), however, provides a preliminary illustration of the same processes that were used
on its more “interesting” relatives, Korematsu and Hirabayashi.




39
   See Alexander v. De Witt, 141 F.2d 573, 574 n.2 (9th Cir. 1944).
40
   See United States v. Teresi, 484 F.2d 894, 899 (7th Cir. 1973).
41
   See generally Pino v. Nicolls, 215 F.2d 237, 242 (1st Cir. 1954); Boufford v. United States, 239 F.2d 841, 844 (1st
   Cir. 1956). Judge Magruder wrote both these opinions.
42
   WILLIAM SHAKESPEARE, MUCH ADO ABOUT NOTHING (written in 1598 or 1599, first published in 1623).
43
   ARTHUR CONAN DOYLE, Silver Blaze, in THE MEMOIRS OF SHERLOCK HOLMES (Penguin, 2011).


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                                          THE BANALITY OF EVIL ?


      2. HIRABAYASHI: JUST ANOTHER ROUTINE CRIMINAL PROCEDURE
      PRECEDENT (?)

With more than 300 citations,44 Hirabayashi—concerning Gordon Hirabayashi’s deliberate
(civil disobedience) violation of early wartime exclusion and internment orders45 —has
been cited by the federal circuit courts substantially more often than both Korematsu
(1943) and Korematsu (and probably all other 1940s Japanese American cases) put
together.46 However, more than two thirds of these were usually brief, passing citations
used to rubber-stamp a tool for judicial efficiency in criminal procedure: the doctrine of
concurrent sentences, holding that an appellate court may generally ignore arguments
on appeal regarding particular counts and sentences in multi-count criminal
prosecutions, if other, equal or greater sentences would remain standing regardless.47
This doctrine was increasingly called into question during the 1970s-80s as being
perhaps too quick and facile in dismissing or ignoring the issues that might still remain
significant for appeals, criminal records, and potential collateral adverse impacts on
defendants.48 Yet from 1949 through 1981, out of 229 citations of Hirabayashi during that

44
   Cases citing Hirabayashi include some historically special cases that, by their very nature, were likely to
   address the case and holding at much greater length in a manner quite different from most “ordinary”
   citing cases. These include Toyosaburo Korematsu v. United States, 140 F.2d 289 (9th Cir. 1943), the circuit-
   court iteration of what would become Korematsu (1944), and the various major cases of the 1980s relating
   to Japanese American official exoneration and reparations: Hohri v. United States, 782 F.2d 227 (D.C. Cir.,
   January 1986); Hohri v. United States, 793 F.2d 304 (D.C. Cir., May 1986); Hohri v. United States, 847 F.2d 779
   (Fed. Cir. 1988); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). Because these fall in a rather
   special category, they, and similar cases that cite Korematsu (1944), have been excluded from the statistical
   data concerning more “ordinary” cases. That leaves 301 separate citing cases, with five of those including
   situations where both the majority opinion and a dissent or a concurrence/dissent cite Hirabayashi.
45
   See Hirabayashi v. United States, 320 U.S. 81.
46
   Although this data likely would be better communicated in a chart or graphic, the annual usage rate of
   Hirabayashi, in cases, is as follows: 6x, 1943; 8x 1944, 10x 1945, 7x 1946, 3x 1947 & 1948 & 1950, 7x 1949, 5x
   1951 & 1952, 2x 1953 & 1955, 3x 1954, 6x 1956, 4x 1957, 9x 1958, 10x 1959, 3x 1960, 8x 1961, 12x 1962, 5x
   1963, 11 x 1964, 9x 1965, 3x 1966, 8x 1967, 11x 1968, 16x 1969, 15x 1970, 10x 1971, 13x 1972, 11x 1973, 5x
   1974, 6x 1975, 9x 1976, 3x 1977 & 1979, 8x 1978, 5x 1980, 2x 1981, 1x 1983, 0x 1982 & 1984 & 1986 & 1988 &
   1992, 2x 1985 & 1989 & 1991, 1x 1987 & 1990 & 1993 & 1994 & 1995 & 1996 & 1997, 2x 1998, 1x 1999, 0x 2000,
   3x 2001 & 2002 & 2003, 2x 2004 & 2006, 0x 2005 & 2007-2014, 1x 2015 & 2016. Because of the five situations
   where there were two opinions citing Hirabayashi in the same case, in 1949, 1957, 1964, 1967, and 1978, to
   count opinions per year, each of those years should be elevated by one: i.e., 8x 1949, 5x 1957, 12x 1964, 9x
   1967, and 9x 1978. Again, because the original Ninth Circuit iteration of Korematsu (1944) and the various
   reparations/exoneration cases of the 1980s are in a somewhat different category, those five cases and seven
   opinions are excluded from these statistics.
47
   The doctrine of concurrent sentences continues to exist today, though only in a diminished state and in
   particular jurisdictions, while other jurisdictions have rejected the doctrine. See WAYNE R. LAFAVE ET AL., The
   Concurrent Sentence Doctrine, in CRIMINAL PROCEDURE (2003). Regarding the doctrine as it stood through much
   of the period under discussion, see The Federal Concurrent Sentence Doctrine, 70 Colum. L. Rev. 1099 (1970). For
   the history of the doctrine, see Anne S. Emanuel, The Concurrent Sentence Doctrine Dies a Quiet Death—Or Are
   Reports Greatly Exaggerated?, 16 Florida St. U. L. Rev. 269 (Summer 1988).
48
   See LaFave et al., supra note 47 ; Emanuel, supra note 47, regarding this reconsideration of the doctrine, which
   began with a Supreme Court opinion from the heyday of Supreme Court liberalism—Benton v. Maryland,
   395 U.S. 784, 789-90 (1969).


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period, 202 concerned concurrent sentences—a nearly unbroken string, with other
issues appearing only sporadically. After early inklings in 1950 and 1956, Hirabayashi
established a comparatively modest presence as a cited authority regarding civil rights
and non-discrimination arguments starting in 1968, with ten additional such citations,
usually brief and in passing, through 1979.
        The nature of use of Hirabayashi changed abruptly during the 1980s and after. Of
thirty-six total circuit opinions mentioning Hirabayashi from 1983-2016, four were
reparations-related (including four of the five uses from 1986-88), and thus were in a
different category from the other cases due to being inherently more likely to discuss the
facts and issues associated with the Japanese American internment at greater length and
depth and are excluded from the general population of cases and opinions for analysis as
such.   Of the remaining thirty-two cases, twenty-seven either invoked the ringing
anti-discrimination language in Hirabayashi that federal circuit courts mostly had
ignored before 1983 or included ostentatious hand-wringing over the constitutional
train-wreck Hirabayashi and Korematsu had finally been recognized to be.         The vast
majority of these latter uses came after the Congress issued its apology and reparations
to the Japanese American internment survivors in 1988.



   2.1. HIRABAYASHI: USE IN GENERAL

In the first phase of H’s life, from July 1943 through May 1949, out of forty-one citations
of the case, thirty (73.2% of forty-one) largely or entirely concerned the federal
government’s power to wage war. Six other citations concerned the general federal
powers or delegation of legislative or executive authority outside the strict
military/wartime context and typically construed those powers liberally (1943, 1944,
1945, twice in 1948, 1949). Concurrent sentences doctrine made a tentative appearance
during these early years, either alone (twice in 1945, once in 1946) or associated with
federal power to wage war (1946, twice in 1947). The question of the constitutional
relationship between the Fifth and the Fourteenth Amendments with regard to the
issues of equal protection under the Fourteenth, versus due process and quasi-equal
protection under the Fifth Amendment—arguably among the most significant
legal/constitutional issues raised by the Hirabayashi and Korematsu litigation, especially
in light of later developments in civil rights law during the 1950s-60s—made a first brief
appearance in December 1947. During the later years of U.S. participation in the Second
World War as well as the rest of the 1940s, the nation and its judiciary were still busy
with mopping up after the vast and often horrific international and domestic mess that


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                                          THE BANALITY OF EVIL ?


remained, and use of Hirabayashi was primarily associated with such purposes—such as
disciplining or punishing those who had cheated on wartime rationing, those who had
been disloyal, those who had challenged federal defense material procurement on
traditional (non-wartime) business contract grounds, those who claimed to be
conscientious objectors but failed to report for alternate duty, and so on.
           As already noted, during the main period of its precedential life cycle, Hirabayashi
was used overwhelmingly regarding the criminal procedure doctrine of concurrent
sentences, which accounted for 214 out of 306 total uses (nearly 70%). Starting in
February 1945, and especially from June 1949 to December 1981, use of Hirabayashi for
that purpose was almost unbroken: out of 229 federal circuit cases citing Hirabayashi,
1949-1981, 202 (88.2%, or roughly seven-eight of the 1949-1981 total) concerned
concurrent sentences; five concerned federal power to wage war (three of those between
1949-1951, others in 1959 and 1969); twelve (5.2%) concerned non-discrimination and/or
civil rights (1950, 1956, two in 1968, 1969, 1971, two in 1972, 1975, two in 1976, 1979);
three concerned nationality (1951, 1979, 1980); only four additional cases concerned the
still uncertain relationship between the Fifth and the Fourteenth Amendments (1956,
1958, 1962, 1968) after the first discussion of that issue came in December 1947; and
others concerned other such matters as the warrant requirement for search and seizure
(1975), restrictions on travel during emergencies (1971), and preventive detention (1969).
           Again, and after a brief gap in uses between 1981 and 1983 which
(non-coincidentally?)           happened to coincide with the 1982 release of the initial
Congress-commissioned study first officially finding that the Japanese American
internment had been a huge and tragic mistake based largely upon racial animus,49 there
were an additional thirty-six uses of Hirabayashi from 1983-2016 (11.8% of 306).
Subtracting the three different versions of the Hohri reparations litigation (two in 1986,
one in 1988) and the reappearance of Hirabayashi as a reparations case in 1987 leaves
thirty-two uses, 1983-2016. Of these, one concerned general judicial efficiency (1991),50
two addressed the old topic of concurrent sentences for the last times (1991, 1994),51 and
two others involved the even older topic of the federal power to wage war, this time in
the context of the post-2001 “War on Terror” (2003, 2004).52                                All others were
sanctimonious hand-wringing of one sort or another: two regarding nondiscrimination
49
   Comm’n On Wartime Relocation and Internment of Civilians, Personal Justice Denied 18 (1982),
   https://www.archives.gov/research/ japanese-americans/justice-denied [readers accessing the website
   from a country different than the U.S.A. might experience automatic redirection to the homepage of the
   National Archives website].
50
   See Hing Tin Ngai v. U.S.I.N.S., 937 F.2d 612 (9th Cir. 1991).
51
   See United States v. Barel, 939 F.2d 26 (3d Cir. 1991); United States v. McHatton, 16 F.3d 401 (1st Cir. 1994).
52
   See Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003); El-Shifa Pharmaceutical Industries Co. v. United States,
   378 F.3d 1346 (Fed. Cir. 2004).


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generally,53 two bemoaning the Constitutional train wreck,54 one using the somewhat
famous “loaded weapon” quote and passage from Justice Jackson’s Korematsu dissent in
conjunction with Hirabayashi to similar effect,55 and twenty-two others all repeating
what became a kind of standard mantra making use of ringing language from Hirabayashi
regarding strictly color-blind non-discrimination—what rather suddenly became the
widely used and oft-repeated, “Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people whose institutions are founded
upon the doctrine of equality”.56 The latter twenty-two opinions accounted for 68.8% of
cases citing Hirabayashi from 1983 onward; the expanded group of twenty-seven
represented 84.4%. The “distinctions/odious” quote was used only a total of five times
before 1983 (two early appearances in 1949 and 1950, both from Judge Edgerton of the
D.C. Circuit, then 1972, 1975, and 1979). By contrast, either the full quote or recognizable
fragments of it appeared twenty-three times between 1983 and 2016.                                        To further
rhetorically buttress the hand-wringing/odious distinctions theme, Plessy v. Ferguson
(another rather famous constitutional train-wreck) increasingly was rolled out as a
companion for Hirabayashi, appearing five times in the period from 1998-2015 (after only
four sporadic earlier appearances from 1950-1971).57
           That Plessy was used three times within four years (1998, 1999, 2001), then once
in 2006 and in 2015, suggests that at a certain point, there may have been a sense that the
Plessy rhetorical meme was being overused. Similarly, after a long run from 1993 through
2006 in which Hirabayashi and the “odious distinctions quote” appeared at least once in
almost every year (and two or three times each year from 2001-2003), after 2006 there was
a notable lull before their re-emergence in 2015 and 2016.




53
   See Scott v. Pasadena Unified School Dist., 306 F.3d 646 (9th Cir. 2002); Rothe Development, Inc. v. United
   States Department of Defense, 836 F.3d 57 (D.C. Cir. 2016).
54
   See McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (Lay, J., conc./diss.); Hassan v. City of New York, 804 F.3d
   277 (3d Cir. 2015).
55
   See Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003) (Motz, J., diss.) (“As Justice Jackson recounted, despite the
   Supreme Court’s careful efforts to limit the scope of its holding in Hirabayashi, to the specific facts of that
   case, the Court later determined that Hirabayashi dictated the holding in Korematsu”. See id. at 247 (Jackson,
   J., dissenting) (“The Court is now saying that in Hirabayashi we did decide the very things we there said we
   were not deciding”).
56
   See, e.g., Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir. 1983) (Engel, J., diss.); Steele v. F.C.C., 770 F.2d
   1192 (D.C. Cir. 1985); United States v. Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989); Sylvia Development Corp.
   v. Calvert County, Md., 48 F.3d 810 (4th Cir. 1995); Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001); Kohlbek
   v. City of Omaha, Neb., 447 F.3d 552 (8th Cir. 2006); Coalition to Defend Affirmative Action v. Granholm, 473
   F.3d 237 (6th Cir. 2006).
57
   The even more infamous Dred Scott v. Sandford, 60 U.S. 393 (1856) made only two appearances, both before
   1981 (1969, 1980).


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       2.2. HIRABAYASHI: USE PATTERNS BY JURISDICTION

Out of curiosity, this study checked uses of Hirabayashi by both jurisdiction, court panel,
and opinion-writing judge over time, in detail. Particular jurisdictions—the Fifth, Ninth,
and D.C. Circuits—accounted for more than half of all the citation “traffic” concerning
Hirabayashi. Perhaps one of the more interesting findings, observable sometimes among
lesser as well as heavier users, was a pattern of “pulses” of higher use activity at certain
moments in time separated by periods of non-use or sporadic use; these periods did not
always exactly coincide from one circuit to another. Certain circuits also tended to mostly
abandon use of Hirabayashi earlier than others—some even before the events of the 1980s.

        • First Circuit: The First used Hirabayashi less than most other circuits, only eight
           times (2.8% of the total of 306 opinions) between 1943 and 1994. The first five uses
           all occurred 1943-50 (so, chiefly clean-up after the war); the latter three were
           spaced widely apart and show little if any pattern in time (1967, 1980, 1994). The
           latter three cases were all standard crime/concurrent sentences cases, so the First
           Circuit avoided the reparations and hand-wringing eras entirely, at least regarding
           use of Hirabayashi.

        • Second Circuit: The Second used Hirabayashi a substantial number of times
           (twenty-four, or 7.8%), though less than half the uses in either the Fifth, Ninth, or
           D.C. Circuits. The Second saw ten uses spaced fairly evenly during the wartime and
           early Cold War years from 1944-1952. There were separate small clusters of five
           cases from 1956-59, three cases (one per year) from 1962-64, four cases spaced
           almost evenly and yearly from 1967-71, a case in 1975, and a late stray in 2003. All
           ten cases from 1958-71, and three of the four from 1951-56, were the usual
           concurrent sentences cases. The late case, Padilla v. Rumsfeld (2003),58 was an
           enemy combatants case in the “War on Terror”. The Second mostly stopped citing
           Hirabayashi already in 1975 after dwindling use long before then, and, at least
           regarding Hirabayashi, largely missed the whole flurry of hand-wringing from the
           1980s onward.

        • Third Circuit: The Third used Hirabayashi modestly (15, 4.9%), with a pronounced
           pulsing pattern in various decades: five uses, 1943-45; three uses, 1953-55; two
           uses, 1965 and 1967; three uses, 1977-79, plus late strays in 1991 and 2015. All seven
           cases from 1953 to 1978 were standard concurrent sentences cases, as was the 1991
           case; the very late 2015 case arose from the “War on Terror” and targeted the
58
     See Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003).


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        surveillance of Muslims, and included significant hand-wringing. With limited
        exceptions, similarly to the Second Circuit, the Third already had largely ended its
        use of Hirabayashi in the 1970s.

      • Fourth Circuit: The Fourth was another modest user (eleven, 3.6%) that featured a
        pulsing pattern tilted towards later decades. After a single initial use in 1945, there
        were no more until four during the Civil Rights period from 1967-71, another in
        1980, then two from 1993-95 and another three from 2001-2003. Unlike the First,
        Second, and Third Circuits, the Fourth was a relatively active participant in the
        hand-wringing of the post-1980s.

      • Fifth Circuit: The Fifth was a heavy user of Hirabayashi (59, 19.3%). Like the
        (originally) neighboring Fourth Circuit, it had one initial early use in 1945, then did
        not rediscover the opinion until fourteen years later. Judges of the Fifth Circuit
        used Hirabayashi eight times already from 1959-1965, roughly once a year, already
        including some early civil rights exposure,59 but then vastly expanded that use
        during the late Civil Rights era, with forty-five uses from 1968-1978, including a
        peak of eight uses in 1969 alone and notable concentrations of five uses in 1972,
        1976, and 1978. Then the Fifth saw one use a year from 1979-1981, and two final
        uses in 1996 and 1998—both penned by Jerry E. Smith, a conservative judge and
        Reagan appointee who used the color-blind rhetoric of Hirabayashi against
        affirmative action or equal protection claims. Aside from those two late strays, the
        Fifth’s use of Hirabayashi basically already had ended before the sea change of the
        1980s.
        Here it may be worth mentioning the special and peculiar history of the Fifth
        Circuit in the postwar era. Prior to the creation of the Eleventh Circuit in 1981,60
        carved out of territory formerly in the Fifth, the Fifth Circuit had included most of
        the original Confederate South and basically the entire Deep South, including
        hard-core segregationist states such as Georgia, Alabama, and Mississippi that
        became the particular “problem children” of the desegregation era (though that’s
        not to let other states, including Arkansas, Texas, Louisiana, Virginia, the
        Carolinas, and many others, North, South, and West, off the hook).61 Some judges
        of the Fifth Circuit were perceived, and respected, as relatively bold national
59
   See e.g., Gomillion v. Lightfoot, 270 F.2d 594 (5th Cir. 1959) (Brown, J., diss.); Boson v. Rippy, 285 F.2d 43 (5th
   Cir. 1960) (Rives, C.J.) (an early school desegregation case involving plans for a gradual desegregation of the
   public schools of Dallas, Texas).
60
   See Baker, supra note 29.
61
   For a disturbing, tastefully done, partly fictionalized but largely accurate historical vignette of Mississippi,
   the worst of the problem children, during the tumultuous Freedom Summer of 1964, see, e.g., Mississippi
   Burning (1988), a feature film starring Willem Dafoe and Gene Hackman and directed by Alan Parker.


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        leaders on civil rights and desegregation, partly due to the Eisenhower
        administration’s appointment of various Republican federal judges62 who were not
        political prisoners of the traditional, post-Confederate, pro-segregationist
        southern wing of the Democratic Party that effectively controlled nearly all other
        state or federal elective or appointive offices throughout what was traditionally
        labeled the “Solid South”.63 At any rate, judges such as Elbert Tuttle, John Brown,
        and John Minor Wisdom, among others, periodically issued pro-civil rights
        opinions that were closer in outlook to that of the Warren Court than to that of
        most of their neighbors within the old Fifth Circuit. They also received death
        threats for their efforts. For the same reason, Judge J. Skelly Wright, a federal
        district judge in Louisiana who issued locally unpopular opinions regarding school
        desegregation and other matters, was given a safer seat on the D.C. Circuit.64 This
        peculiar and somewhat heroic role of the federal judges of the Fifth Circuit likely
        accounts for some of its particularly heavy traffic in Hirabayashi during the Civil
        Rights years. However, as with most other circuits, the vast majority of uses of
        Hirabayashi in the Fifth Circuit (forty-nine of fifty-nine) involved the usual
        concurrent sentences doctrine—although many of these criminal cases also
        involved civil rights/equal protection arguments, and the Fifth was fairly
        prominent in starting to call aspects of the concurrent sentences doctrine into
        question during the 1970s.65


      • Sixth Circuit: The Sixth used Hirabayashi twenty times (6.5%), with some notable
        pulsing or clustering: four times, 1944-47; five times, 1958-62; three times in 1965
        and another four times, 1966-68; plus sporadic later uses in 1974, 1978, 1983, and

62
   Conservative Fifth Circuit Judge Jerry E. Smith, mentioned earlier, was a post-Nixon Republican appointed
   by President Reagan, unlike the moderate and pro-civil rights Eisenhower Republican appointees of the Old
   Fifth.
63
   Regarding the Fifth Circuit judges, sometimes called the “Fifth Circuit Four,” who often took a stand for civil
   rights in what were then relatively hostile surroundings, See, e.g., JACK BASS, UNLIKELY HEROES: THE DRAMATIC
   STORY OF THE SOUTHERN JUDGES OF THE FIFTH CIRCUIT WHO TRANSLATED THE SUPREME COURT’S BROWN DECISION INTO
   A REVOLUTION FOR EQUALITY (1981); Jack Bass, The “Fifth Circuit Four”: How Four Federal Judges Brought the Rule
   of Reason to the South, Nation, May 3, 2004, available at https://www.thenation.com/article/archive/fifth-
   circuit-four/ [hereinafter Bass, The “Fifth Circuit Four”]; Joel W. Friedman, John Minor Wisdom: The Noblest
   Tulanian of Them All, 74 TUL. L. REV. 1, 24 (1999). Regarding the history of the recognition of the phenomenon
   of the one-party Democratic “Solid South,” See, e.g., Marian D. Irish, The Southern One-Party System and National
   Politics, 4 J. POL. 80 (1942). See also Gerald R. Webster, Demise of the Solid South, 82 GEOGRAPHICAL REV. 43 (1992).
   For longer, book-length treatments of the overall topic, see, e.g., KARI FREDERICKSON, THE DIXIECRAT REVOLT
   AND THE END OF THE SOLID SOUTH 1932-1968 (2001).
64
   See Marjorie Hunter, Judge J. Skelly Wright, Segregation Foe, Dies at 77, N.Y. Times, Aug. 8, 1988, available at
   https://www.nytimes.com/1988/08/08/obituaries/judge-j-skelly-wright-segregation-foe-dies-at-77.html.
65
   See, e.g., United States v. Carter, 491 F.2d 625 (5th Cir. 1974); United States v. Windom, 510 F.2d 989 (5th Cir.
   1975) (Rosenn, J., conc.); United States v. Crockett, 534 F.2d 589 (5th Cir. 1976); United States v. Evans, 572
   F.2d 455 (5th Cir. 1978).


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        2006. All twelve uses from 1960 to 1978 involved concurrent sentences; the final
        two, post-1980 hand-wringing.

      • Seventh Circuit: The Seventh used Hirabayashi relatively little and briefly (only
        sixteen uses, 5.3%, all between 1943 and 1980) with some degree of pulsing: after
        an early initial use in 1943, there were five uses during the early Cold War years
        (1948-52), two uses, 1958-59; three uses in 1964 alone; four uses from 1970-75; and a
        final use in 1980. All the eleven cases from 1949-73 involved ordinary crimes and
        concurrent sentences.

      • Eighth Circuit: The Eighth used Hirabayashi even less (thirteen, 4.2%). There were
        three uses, 1945-46, one use in 1952, five uses from 1956-64, then sporadic later
        strays in 1970, 1980, 1987, and 2006. All eight cases from 1952-1980 involved
        crimes/concurrent sentences; the final two, hand-wringing.

      • Ninth Circuit: The Ninth, with sixty-two uses of Hirabayashi, accounts for 20.3% of
        the total 306 uses. That the Hirabayashi litigation originated in the Ninth likely
        increased that level of traffic; federal circuit and district courts often tend to favor
        Supreme Court opinions arising from their own circuits, even though they apply to
        everybody.66 The Ninth saw very high use levels during the late wartime and early
        Cold War years as wartime messes were being cleaned up—nine uses from 1943-47
        (four in 1946 alone), with another five from 1949-51. Despite an overall high use
        level, the Ninth saw some pulsing activity, with eleven uses from 1958-1966 (over
        half of those just in 1962 and 1963), twenty-two uses from 1969-73 (sixteen of those
        just from 1970-72), then a dwindling level of activity, with two uses in 1976 and
        single uses in 1978 and 1981. Thirty-eight of the Ninth Circuit uses of Hirabayashi
        involved crimes and concurrent sentences. Perhaps predictably, given that the
        majority of Japanese Americans continued to live along the West Coast in the 1980s
        as they had in the 1940s,67 the Ninth was a particularly active user in the post-1980
        reparations era, with Hirabayashi reappearing in 1985, 1987, 1989, and 1991 plus
        seven additional uses just between 1997 and 2004. Except for one immigration case
        in which a per curiam panel used Hirabayashi for general judicial efficiency68 and
66
   Although this claim admittedly may be impressionistic and anecdotal, it is based upon extensive
   observations over many years. Possibly the most striking example of this phenomenon is federal circuit
   courts citing cases from their home circuit on which the Supreme Court denied certiorari, sometimes where
   the certiorari decision was based on issues entirely separate from those for which the case later is being cited.
67
   According to the 2010 U.S. census, Japanese Americans remain by far most heavily concentrated in the
   states of California and Hawaii—as was also true in the 1940s—with an additional substantial community
   in Washington State. Japanese Americans, Wikipedia,https://en.wikipedia.org/wiki/Japanese_Americans
   (accessed December 23, 2020).
68
    See e.g., Hing Tin Ngai v. U.S.I.N.S., 937 F.2d 612 (9th Cir. 1991).


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        another affirmative action/education case where it was used for general
        non-discrimination,69 all other later uses involved hand-wringing, mostly by
        conservative judges on behalf of strict color-blindness.

      • Tenth Circuit: The Tenth made little use of Hirabayashi (ten, 3.3%), with two uses
        from 1950-51, one in 1954, two in 1958-59, then sporadic uses in 1965, 1968, 1973, and
        two in 1976. The Tenth sat out the reparations era and the hand-wringing flurry, at
        least as far as Hirabayashi was concerned.

      • Eleventh Circuit: The Eleventh didn’t even exist for most of the time before the
        1980s reparations era began, and it used Hirabayashi only once, in a 2001
        hand-wringing opinion.70

      • District of Columbia Circuit: The D.C. Circuit joined the Ninth as the heaviest user
        of Hirabayashi (sixty-two, 20.3%), with somewhat lighter use in the earlier years
        followed by very heavy use between 1956 and 1972 in particular. After an initial
        use in 1946 and six uses from 1949-54, the D.C. Circuit saw thirty uses from 1956-66,
        including four uses each in 1957, 1959, and 1961, and five in 1964, followed by
        seventeen additional uses between 1967 and 1972 (including five just in 1969).
        Activity then dwindled, with one use in 1975, but picked up again in the 1980s,
        with three uses from 1985-86 (including the first two mid-appellate-level iterations
        of Hohri, the key reparations case, in 1986), two more from 1989-90, and, after a
        twenty-six-year gap, a very late stray affirmative action case in 2016. Like the Fifth
        Circuit, and even more than the Ninth, the D.C. Circuit made very heavy use of
        Hirabayashi as a precedent regarding the concurrent sentences—forty-seven of the
        sixty-two cases.        It is possible that D.C. judges might have used Hirabayashi
        somewhat more heavily as a local authority for the District of Columbia, whereas
        some other jurisdictions, even if they invoked the concurrent sentences doctrine,
        might have turned to some later, local circuit opinion on the same issue for
        authority—though that would not explain the Fifth Circuit’s relatively heavy use of
        Hirabayashi for the same purpose.71

69
   See e.g., Scott v. Pasadena Unified School Dist., 306 F.3d 646 (9th Cir. 2002).
70
   See, e.g., Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234 (11th Cir. 2001).
71
   As examples of potential alternate authorities addressing the same issue, see, e.g., United States v. Darnell,
   545 F.2d 595, 598-99 (8th Cir. 1976) (including a relatively eloquent notice that, although they would have
   liked to consider all the merits of any claim submitted to them, “[t]he luxury of time is denied us. We are,
   even now, overdrawn on this resource”); United States v. Moore, 452 F.2d 576 (9th Cir. 1971); United States
   v. Gaines, 460 F2d 176 (2d Cir. 1972). For an example of where the U.S. Supreme Court called the doctrine of
   concurrent sentences more into question—and a dissent sharply challenged the majority for doing so—see,
   e.g., Benton v. Maryland, 395 U.S. 784 (1969).


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      • Federal Circuit: The Federal Circuit got into the act, also, late and in a limited way,
        not usually having to hear the sorts of cases that produced citations of Hirabayashi in
        other circuits. The Federal Circuit heard the last iteration of Hohri before Congress’s
        apology and reparations in 1988, followed by cases in 2002 and 2004 involving a U.S.
        Air Force gender affirmative action program72 and extra-territorial designation of
        enemy property,73 respectively.

      • United States Emergency Court of Appeals: Most readers, like the author, may have
        been previously unaware that there ever was such an entity, but it existed from 1942
        onward74 and is yet another reminder that in 1942, the nation found itself in the
        worst national crisis since the American Civil War. The Emergency Court, which sat
        nationwide to hear cases concerning the wartime Office of Price Administration, saw
        Judge Calvert Magruder of the First Circuit working with Fred Vinson, later Chief
        Justice of the Supreme Court, along with Judge Albert Maris of the Third Circuit
        among others. The Emergency Court cited Hirabayashi in two July 1943 opinions,
        both concerning rent control under the Emergency Price Control Act of 1942.75




72
   See, e.g., Berkley v. United States, 287 F.3d 1076 (Fed. Cir. 2002).
73
   See also El-Shifa Pharmaceutical Industries Co. v. United States, 378 F.3d 1346 (Fed. Cir. 2004).
74
   An obituary tribute to Third Circuit Judge Albert Branson Maris, who was for a time Chief Judge of the
   Emergency Court of Appeals, suggests that said court, which had “exclusive jurisdiction to review orders
   and regulations of the Office of Price Administration,” continued to sit all the way until 1962, though that’s
   somewhat hard to imagine (but may well be true and correct, and the Second World War was big enough to
   produce a lot of major, potentially long-lasting messes to clean up). See Dolores K. Sloviter, Memorial Tribute
   to the Honorable Albert Branson Maris 1983-1989, 62 TEMP. L. REV. 471 (1989). In September 1945, shortly after
   the Second World War (though not its aftermath and clean-up) were officially over, it was noted:
                 The United States Emergency Court of Appeals, which reviews determinations of
                 prices by the Office of Price Administration, received appeals in 93 cases during the
                 year and had 52 cases pending at the close of the year. The average time required
                 by the court for disposing of cases (exclusive of any time required for submitting
                 additional evidence) was 6.8 months. In order to meet the convenience of the parties
                 the court traveled constantly so as to hold hearings where the cases were, and sat in
                 twenty-two places scattered all over the country.
   Henry P. Chandler, Administrative Office of the United States Courts, 4. F.R.D. 488.
75
   See, e.g., Taylor v. Brown, 137 F.2d 654 (U.S. Emergency Ct. Ap. 1943); Wilson v. Brown, 137 F.2d 348 (U.S.
   Emergency Ct. Ap. 1943).


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       2.3. HIRABAYASHI: ISSUES

       2.3.1. CRIMINAL CASES

As noted already, the vast majority of the citations of Hirabayashi were routine passing
references concerning concurrent sentences in criminal procedure. Some jurisdictions—
especially the First, Second, Third, and Ninth Circuits (which, probably not coincidentally,
included most of the nation’s major port cities as well as major immigrant populations),
though not others, also had significant numbers of early cases from the 1940s and early
1950s trying to clean up the wartime messes, along with cases from the early Cold War
that soon followed. Other categories of the cases associated with Hirabayashi are relatively
limited, at least until the post-1980s hand-wringing.
             More than 200 cases citing Hirabayashi involved ordinary criminal acts of one
sort or the other. These included fifty-five narcotics cases, spanning 1951-1990, with
nine in the 1950s, eighteen in the 1960s, and twenty-six in the 1970s, with a spike of
seven in 1970 alone, followed by two late strays in 1989 and 1990. Most of the later
narcotics cases from 1971 onward—seventeen—also included civil rights arguments, such
as denial of equal protection to African American defendants. This injection of equal
protection claims was a trend for other criminal cases in the 1970s, also. The next largest
batch was thirteen cases of tax evasion—a rather distant second, but far ahead of all
other crime categories, including various varieties of bank fraud, mail fraud, wire fraud,
armed robbery, bank robbery, and transporting stolen cars or other stolen goods in
interstate commerce, among others.
             Just as overall use of Hirabayashi featured more prominently in certain
jurisdictions, use of Hirabayashi in drug prosecutions also featured more prominently,
mostly in the same jurisdictions. It is hard to imagine that other jurisdictions were not
experiencing the same overall surge in drug use, drug trafficking, and drug prosecutions
during the 1960s and 1970s as the heaviest users of Hirabayashi, which implies that the
other jurisdictions may have been turning to other authorities to justify whatever
crackdowns on drug activity were happening within their respective jurisdictions.76 At
any rate, of the 55 drug cases, the Ninth Circuit accounted for seventeen, and the Fifth
and D.C. Circuits each accounted for thirteen (between the three jurisdictions, 78.2% of
the total). The Second, Eighth, and Tenth Circuits cited Hirabayashi in narcotics cases

76
     Particularly during the heroin epidemic of the 1960s-early 1970s, when the “French Connection” was
     importing heroin to East Coast cities for distribution by the Mafia, cities and circuits along the East Coast
     were not without drug problems—particularly New York City. See, e.g., John Bacon, Is the French Connection
     Really Dead?, 8 DRUG ENF’T 19 (1981). Michael Agar & Heather Schacht Reisinger, A Tale of Two Policies: The
     French Connection, Methadone, and Heroin Epidemics, 26 CULTURE, MED. & PSYCHIATRY 371 (2002).


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each two times, the Seventh Circuit three times, and the First, Third, Fourth, and Sixth
Circuits never cited Hirabayashi even once in the narcotics cases. Presumably these
jurisdictions were mostly using authorities other than Hirabayashi for similar
purposes—or perhaps made significantly less use of the concurrent sentences doctrine.
           Among other categories of issues that show up among federal circuit cases that
cite Hirabayashi, the potentially quite interesting Fifth/Fourteenth Amendment Due
Process/Equal Protection issue only showed up five times in four jurisdictions: the
Second (1947 and rather precocious); the Fifth (1962); the Sixth (1958); and the D.C.
Circuit (1956, 1968).77 General federal power/delegation of power surfaced only a few
times, almost entirely in the 1940s plus a few more from the 1950s, with only the Seventh
Circuit showing two of these, while single uses in the First, Fifth, D.C., and U.S.
Emergency Circuits represented the rest. Federal power to wage war appeared in various
circuits, primarily in the 1940s and 1950s, with a few late manifestations concerning the
Vietnam era and the much later “War on Terror”. The First Circuit saw four of these
cases; the Second six cases; the Third five; the Ninth nine; the Sixth two; and all other
circuits, only one or zero. Before the “War on Terror”, such cases often concerned
conscientious objectors or other draft resistance. There were ten conscientious objector
cases that cited Hirabayashi, 1943-1949, with two such cases in both the Second and Third
Circuits, only one in the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits, plus two
later failures to report for service in Vietnam from the Fifth and Sixth Circuits.78




77
   See United States v. Josephson, 165 F.2d 82 (2d Cir. 1947); Kendrick v. United States, 238 F.2d 34 (D.C. Cir. 1956);
   Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, 262 F.2d 359 (6th Cir. 1958); Employing
   Lithographers of Greater Miami, Fla. v. N. L. R. B., 301 F.2d 20 (5th Cir. 1962); Washington v. United States,
   401 F.2d 915 (D.C. Cir. 1968).
78
   See United States v. Irons, 369 F.2d 557 (6th Cir. 1966); Simmons v. United States, 406 F.2d 456 (5th Cir. 1969).


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                                            THE BANALITY OF EVIL ?


     2.3.2. DISLOYALTY

Disloyalty represented another recurring theme during the 1940s-1950s.

      • Refusal to Answer Questions/False Statements Regarding Communist Affiliations:
        a classic expression of Cold War culture and the McCarthy Era in America. Authors
        and intellectuals were more likely to get nailed for refusing to answer the
        questions about party membership; union officials were more likely to face
        prosecution for falsifying mandatory affidavits of non-Communist activity, then
        required by the federal law.79 There were two such cases citing Hirabayashi from
        the Second Circuit (1947, 1951),80 including the prosecution of novelist Dashiell
        Hammett, of Sam Spade/The Maltese Falcon fame, among others for refusing to
        answer questions; one case in the Sixth Circuit (1959, union official);81 two in the
        Ninth Circuit (1949, refusal to answer; 1959, union official);82 and two cases in the
        Tenth Circuit (1958, 1959, both involving union officials).83

      • Treason: although these cases typically involved American citizens who were
        captured either in Germany, Austria, or Japan after the war, and mostly involved
        radio broadcasters who had assisted Axis nations, the two European cases were
        both tried in the First Circuit (1948, 1950),84 the two Japanese cases both in the
        Ninth Circuit (both 1951).85              Among the other, lesser-known cases, the Ninth
        Circuit cases included the in/famous prosecution of “Tokyo Rose”.




79
   The Taft-Hartley Act of 1947 added this new requirement. See Nelson Lichtenstein, Taft-Hartley: A Slave-Labor
   Law, 47 CATH. UNIV. L. REV. 763, 782-85 (1998). For more flavor of the times, see, e.g., 4 U.S. Attys’ Bull. No.
   25 (December 7, 1956) at p. 777 (describing prosecutions of various union officials).
80
   See, e.g., United States v. Josephson, 165 F.2d 82 (2d Cir. 1947); United States v. Field, 193 F.2d 92 (2d Cir. 1951)
   (the Hammett case).
81
   See, e.g., Davis v. United States, 269 F.2d 357 (6th Cir. 1959).
82
   See Alexander v. United States, 173 F.2d 867 (9th Cir. 1949) (Denman, J., diss.); Fisher v. United States, 254
   F.2d 302 (9th Cir. 1958).
83
   See Sells v. United States, 262 F.2d 815 (10th Cir. 1958); Travis v. United States, 269 F.2d 928 (10th Cir. 1958).
84
   See Chandler v. United States, 171 F.2d 921 (1st Cir. 1948); see also Best v. United States, 184 F.2d 131 (1st Cir.
   1950). Both opinions also came from Judge Magruder.
85
   See Tomoya Kawakita v. United States, 190 F.2d 506 (9th Cir. 1951); Iva Ikuko Toguri D’Aquino v. U. S., 192
   F.2d 338 (9th Cir. 1951) (the “Tokyo Rose” case).


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     2.3.3. CIVIL RIGHTS CASES

 Only fourteen cases involving civil rights in general cited Hirabayashi in the period before
 the wartime Japanese internment cases regained major public, judicial, and
 Congressional attention in the 1980s.86 The first of these, an early (and unsuccessful)
 challenge to segregated public schools in 1950 in the D.C. Circuit,87 was followed by a
 Second Circuit immigration case concerning civil rights in 1956,88 a Sixth Circuit equal
 employment case challenging a segregated labor union in 1958,89 a Fifth Circuit
 redistricting/voting rights case in 1959,90 and a second school segregation case in the
 Fifth Circuit in 1960.91 There then was a gap in use of Hirabayashi in the civil rights
 context until the major civil rights surge of the late 1960s-1970s, which saw a Fifth
 Circuit case in 1968 concerning prisoners’ reading materials92 along with a Fifth Circuit
 case in 1968 involving equal employment of minority police officers,93 a Fifth Circuit
 case in 1969 regarding the closing of public swimming pools in a southern county,94
 three more school desegregation cases in 1971-1972 (4th Circuit, 1971,95 D.C. Circuit,
 1972,96 5th Circuit, 197297 ), another redistricting case in 1975 (2nd Circuit),98 and two
 cases involving American Indian tribal membership in 1975-1976 (7th Circuit, 1975,99
 10th Circuit, 1976100 ). These fourteen cases thus represented only 5.2% of the 270 uses of
 Hirabayashi in circuit court opinions through the end of 1981 (4.6% of the total of 306
 opinions); more ordinary crime- and criminal procedure-related cases accounted for
 more than 80%. Six of these fourteen civil rights came from the Fifth Circuit; another
 two apiece from the Second and D.C. Circuits; the Fourth, Sixth, Seventh, and Tenth
 Circuits supplied the rest.

86
    Such cases emerged in these years, from these circuits and raising these issues: See generally 1950
    (D.C., school desegregation), 1956 (Second, immigration), 1958 (Sixth, segregated labor union), 1959
    (Fifth, redistricting/racial gerrymandering), 1960 (Fifth, school desegregation); 1968 (Fifth, prison reading
    materials), 1968 (Fifth, equal employment/unequal treatment of minority police officers), 1969 (Fifth, equal
    accommodations/closing of public swimming pools), 1971 (Fourth, school desegregation), 1972 (D.C., school
    desegregation), 1972 (Fifth, school desegregation), 1975 (Second, redistricting), 1975 (Seventh, Indian tribal
    membership), 1976 (Tenth, Indian tribal membership).
 87
    See Carr v. Corning, 182 F.2d 14 (D.C. Cir. 1950) (Edgerton, J., diss.).
 88
    See United States ex rel. Lee Kum Hoy v. Shaughnessy, 237 F.2d 307 (2d Cir. 1956).
 89
    See Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, 262 F.2d 359 (6th Cir. 1958).
 90
    See Gomillion v. Lightfoot, 270 F.2d 594 (5th Cir. 1959) (Brown, J., diss.).
 91
    See Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960).
 92
    See Jackson v. Godwin, 400 F.2d 529, 537.
 93
    See Baker v. City of St. Petersburg, 400 F.2d 294, 295, 297-298.
 94
    See Palmer v. Thompson, 419 F.2d 1222 (5th Cir. 1969).
 95
    See Wright v. Council of City of Emporia, 442 F.2d 588, 595 (4th Cir. 1971) (Winter, J., diss.).
 96
    See Bulluck v. Washington, 468 F.2d 1096, 1116 (D.C. Cir. 1972).
 97
    See Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142 (5th Cir. 1972).
 98
    United Jewish Organizations of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 528 (2d Cir. 1975).
 99
    See Eskra v. Morton, 524 F.2d 9 (7th Cir. 1975).
100
    See Martinez v. Santa Clara Pueblo, 540 F.2d 1039 (10th Cir. 1976).


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                                           THE BANALITY OF EVIL ?


      2.3.4. IMMIGRATION AND NATURALIZATION

 There were also a handful of immigration and naturalization-related cases citing
 Hirabayashi during the period from the 1940s-1990s, including two deportation cases
 from very different chapters of U.S. immigration history, the former a deportation under
 the Alien Enemy Act (1946, D.C. Circuit),101 the latter a deportation of an undocumented
 Asian immigrant (1991, 9th Circuit).102 Plus there was a 1956 case involving immigrant
 blood tests, criminal procedure, and civil rights (2nd Circuit),103 and three criminal cases
 all from the Ninth Circuit in the early 1970s concerning fake immigration papers
 (1970),104 immigrant smuggling (1971),105 and immigration bribery (1973),106 as well as a
 naturalization and expatriation case (1949, D.C. Circuit), the requirement that Iranian
 students prove immigration status to the American authorities during the Iranian
 Hostage Crisis that helped bring down the ill-fated Carter Administration (1979, D.C.
 Circuit),107 a war bride denied entry (1949, 2nd Circuit),108 passport restrictions during a
 national emergency (1957, D.C. Circuit),109 and a case considering a Japanese American
 citizen’s renunciation of citizenship under duress (1949, 9th Circuit).110 These eleven
 cases represent 3.6% of the total of 306 circuit opinions citing Hirabayashi.
           Many of the civil rights and immigration cases cited Hirabayashi for the larger
 legal concept of non-discrimination. Non-discrimination (without the rhetorical flourish
 of “odious”) mostly dates to the earlier years and appeared four times in the Old Fifth
 Circuit (twice in 1968, 1969, 1972), with additional cases from the Fourth (1971), Ninth
 (2002), Tenth, and D.C. (2016) Circuits. Non-discrimination, with the added flourish of
 “odious,” was mostly a feature of later, post-1980s judicial rhetoric, although the D.C.
 Circuit pioneered this terrain relatively early (1949, 1950, 1972, 1979), followed by the
 Seventh Circuit in 1975. Thereafter, the “odious”-embellished version was used in both
 the specifically national origin context and the more general context by the Third (2015);
 Fourth (1993, 1995, and twice in 2001); Fifth (1996 & 1998); Sixth (1983, 2006); Eighth
 (2006); Ninth (eight times, including 1985, 1989, 1997, 1998, 1999, 2002, 2003, 2004);
 Eleventh (2001); D.C. (1985, 1989, 1990); and Federal Circuit (2002).

101
    See Citizens Protective League v. Clark, 155 F.2d 290 (D.C. Cir. 1946).
102
    See Hing Tin Ngai v. U.S.I.N.S., 937 F.2d 612 (9th Cir. 1991).
103
    See United States ex rel. Lee Kum Hoy v. Shaughnessy, 237 F.2d 307 (2d Cir. 1956).
104
    See United States v. Tamayo, 427 F.2d 1072 (9th Cir. 1970).
105
    See United States v. Lucero, 443 F.2d 64 (9th Cir. 1971).
106
    See United States v. Castro, 476 F.2d 750 (9th Cir. 1973).
107
    See Narenji v. Civiletti, 617 F.2d 745, 754 (D.C. Cir. 1979) (joint statement dissenting against decision not to
    rehear case en banc).
108
    See United States ex rel. Knauff v. Watkins, 173 F.2d 599 (2d Cir. 1949).
109
    See Briehl v. Dulles, 248 F.2d 561 (D.C. Cir. 1957) (Edgerton, J., maj’y; Fahy, J., diss.).
110
    See Acheson v. Murakami, 176 F.2d 953, 953 n.1 (9th Cir. 1949).


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 Notably, the First, Second, and Tenth Circuits never used the “odious” flourish, the Third,
 Seventh, Eighth, Eleventh, and Federal Circuits only a single time, and the Fifth and Sixth
 Circuits only twice; so that the particular rhetorical flourish was mostly a product of the
 Fourth, Ninth, and D.C. Circuits. The full-bore Constitutional Train-Wreck rhetorical
 flourish only appeared in the Third (2015) and the Eighth (1987) Circuits, though it was
 conceptually a close relative to the “odious” cluster.111
            Affirmative Action was a relatively new concept that emerged in the 1970s and
 appeared in court cases and opinions mostly later.112 There were seventeen affirmative
 action cases citing Hirabayashi, 1983-2016, with eight from the 1980s-90s—four of those
 appearing one per year from 1996-1999—and another eight just from 2001-2006.
 Hirabayashi was associated with affirmative action twice in the Fourth and the Sixth
 Circuits, once in the Fifth and the Eighth Circuits, six times in the Ninth Circuit, three
 times in the D.C. Circuit, and once in the Federal Circuit.



      2.4. HIRABAYASHI: JUDGES/OPINION WRITERS

 Forty nine judges cited Hirabayashi at least two or more times. Of those, twenty four cited
 Hirabayashi only twice, another twelve did so three times, and the remaining eight judges
 cited Hirabayashi four times; only five cited the opinion more than four times. Generally,
 judges citing Hirabayashi twice don’t show much of a discernible pattern, and many of
 the judges who cited Hirabayashi three or four times either did so all within the postwar
 clean-up period, or so widely spaced in time as to reveal little by way of a broader
 pattern. Judges who possibly selected Hirabayashi more deliberately and repeatedly over
 a more concentrated time period include Judge Craven on the Third Circuit (three uses,
 1968-71), Judge Goldberg on the Fifth Circuit (three times, 1974-76), Judge Rives on the
 Fifth Circuit (four times, including two civil rights cases, 1960-70), Judge Simpson on the
 Fifth Circuit (three times, 1969-73), Judge Tuttle on the Fifth Circuit (four times,
 including one civil rights case, 1968-74), Judge Wisdom on the Fifth Circuit, (three times,
 1961-74; four times, counting a quote of Hirabayashi misattributed to Korematsu), Judge
 Weick on the Sixth Circuit (three times, 1965-68), Judge O’Scannlain on the Ninth Circuit
111
    See McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (Lay, J., conc./diss.); Hassan v. City of New York, 804 F.3d
    277 (3d Cir. 2015).
112
    Although the wider concept of “affirmative action” on civil rights issues has longer roots, dating back at
    least to Brown v. Board of Education (1954) and a 1961 executive order by President John F. Kennedy, affirmative
    action as a deliberate governmental effort and policy to increase educational and employment opportunities
    for specific under-represented minority communities mostly first emerged during the early 1970s under the
    Nixon administration. See, e.g., Anthony M. Platt, The Rise and Fall of Affirmative Action, 11 NOTRE DAME J. L.
    ETHICS & PUB. POL’Y 67, 72 (1997); Daniel A. Farber, The Outmoded Debate over Affirmative Action, 82 CAL. L. REV.
    893, 896-97 (1994).


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                                           THE BANALITY OF EVIL ?


 (four times, 1997-2004), Judge Doyle on the Tenth Circuit (three times, 1973-76), and
 Judge MacKinnon on the D.C. Circuit (four times, including a civil rights case and the
 Iranian students case, 1970-79).113 Although his four uses were spread over seventeen
 years (1949-65), Judge Edgerton of the D.C. Circuit might also represent a somewhat more
 interesting pattern than most, given that one of his uses was both the first school
 segregation case and the first use of the “odious distinctions” quote (1950), plus the same
 quote even earlier in 1949, while a later case involved passport restrictions (1957). Only a
 small handful of judges ever cited Hirabayashi more than four times: Judge Magruder of
 the First and Emergency Circuits, five times (1943-50, basically all wartime/postwar
 clean-up, one of those while on the Emergency Circuit); Judge Gewin of the Fifth Circuit,
 nine times (1969-78, eight standard criminal cases, one case concerning surveillance);
 Judge Carter of the Ninth Circuit, seven times (1970-73, six of these drug cases, one an
 immigration case, though three had some civil rights overtones); Judge Bazelon of the
 D.C. Circuit, seven times (1956-64, all criminal cases/concurrent sentences); and Judge
 Fahy of the D.C. Circuit, five times (1952-67, four criminal cases plus a passport
 restriction case). Notable repeat performers from circuits that produced relatively large
 numbers of per curiam opinions also showed up repeatedly among these opinions: for
 instance, Judges Gewinn (two times), Simpson (three times), and Tuttle (three times)
 among the Fifth Circuit’s nine per curiam opinions citing Hirabayashi. The D.C. Circuit,
 which had an uncommonly large number (twenty) of per curiam opinions and apparently
 something of a preference for them, found Judge Bazelon in an additional eleven of
 them, Judge Fahy in six, Judge Edgerton in three, and Judge MacKinnon in two—along
 with recurring appearances of other D.C. Circuit judges such as Judge Wilbur K. Miller,
 Judge Washington, and (then) Judge Warren Burger (who used Hirabayashi three times in
 his own name, but was a member of six per curiam panels, usually as a relatively junior
 member). Judge Browning of the Ninth Circuit provided no opinions in his own name
 citing Hirabayashi, but was on the panel in four of the Ninth Circuit’s twelve per curiam
 opinions, as the senior judge or chief judge in three of those. The per curiam format
 inherently tends to hide whichever panel member, if any, had a special fondness for
 Hirabayashi (or any other case).
              Because of the predominance of criminal/concurrent sentences, the relatively
 few cases involving issues such as civil rights, and the comparative rarity of judges citing
 Hirabayashi more than once for a purpose other than concurrent sentences, it is difficult
 to track or claim much evidence of judges displaying persistent or repeated interest in
 Hirabayashi for less conventional purposes, although the examples of Judges Rives,
113
      Notably, two of the “Fifth Circuit Four”—Judges Tuttle and Rives—appear on this list. See Bass, The “Fifth
      Circuit Four”, supra note 63.


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 MacKinnon, and Edgerton might represent exceptions from the earlier years of
 Hirabayashi’s career. There are also two exceptions of note from the later, post-1980s
 years.         Although there were relatively few repeat performers from the
 hand-wringing/odious distinctions era, conservative Judge Diarmuid O’Scannlain of the
 Ninth Circuit cited Hirabayashi four times in eight years (three of those in just three
 years) and used the “odious distinctions” quote each time to call for perfect
 color-blindness regarding racial and other classifications,114 and conservative Judge
 Jerry E. Smith of the Fifth Circuit used Hirabayashi similarly twice, in 1996 and 1998.115



      2.5. HIRABAYASHI: QUOTES

 This raises one of the more clearly visible and interesting patterns in the use of
 Hirabayashi: the wholesale embrace of the “odious distinctions” quoted by conservative
 judges to resist affirmative action programs or initiatives to confront structural racism in
 the post-1980 period. Although O’Scannlain and Smith, both Reagan judicial appointees,
 are relatively prominent as repeat performers, they were only salient representatives of
 a larger trend. Among the many uses of the “odious distinctions” quote for color-blind
 purposes by the Ninth Circuit from the 1990s onward, O’Scannlain was joined by fellow
 Reagan appointees Judges Beezer and Noonan, as well as a per curiam decision from
 Judges Hall and Leavy (both Reagan appointees) plus a district judge sitting pro tem.
 Other Reagan appointees joined in from other circuits: Judge Wollman (Eighth Circuit)
 and Judge Williams (D.C. Circuit). Other color-blind users of the “odious distinctions”
 quote from other circuits showed other conservative lineages. On the Fourth Circuit
 were Judge Niemeyer, appointed a district judge by Reagan, later elevated by Bush (Sr.);
 Judge Williams, appointed by Bush (Sr.); and Judge Traxler, appointed a district judge by
 Bush (Sr.) but later elevated to the Fourth Circuit by Clinton. [The Fourth Circuit also
 produced a full en banc per curiam opinion that also recycled the “odious distinctions”
 quote]. On the Sixth Circuit, Judge Sutton was appointed by Bush (Jr.) and Judge Engel
 was appointed by Nixon, while Judge Marcus on the Eleventh Circuit was appointed a
 district judge by Reagan long before being elevated by Clinton.




114
    See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997); see also Parents Involved in
    Community Schools v. Seattle School Dist., No. 1, 285 F.3d 1236 (9th Cir. 2002); see also Johnson v. State
    of California, 321 F.3d 791 (9th Cir. 2003); see also Parents Involved in Community Schools v. Seattle School
    Dist., No. 1, 377 F.3d 949 (9th Cir. 2004).
115
    See Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996); United States v. Webster, 162 F.3d 308 (5th Cir.
    1998).


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                                       THE BANALITY OF EVIL ?


 Thus, seventeen of the twenty-two clear uses of the “odious distinctions” quote in the
 post-1980 period, all of them for color-blind purposes, came from partly or entirely
 Republican-appointed and/or -elevated judges.
          The “odious distinctions” quote was also used by some Democratic judicial
 appointees, sometimes also for color-blind purposes. Judge Tamm, elevated to the D.C.
 Circuit by Lyndon Johnson but first appointed a district judge by Harry Truman in 1948,
 invoked the color-blind quote in striking down an affirmative action program not long
 before he died of old age; it is easy to imagine that an elderly judge whose experiences
 with civil rights ideas dated back to the strictly color-blind ideology of the late
 1940s-early 1960s might have had particular difficulty accepting the concept of
 affirmative action programs.116            Judge Robinson, also of the D.C. Circuit, likely
 represented a different story. Robinson, himself originally a notable African American
 civil rights attorney like Thurgood Marshall, used the color-blind language of Hirabayashi
 in aid of the defendants in a case involving both racial and national origin profiling of
 alleged Jamaican drug dealers;117 it would be interesting to know what he thought of the
 use of the same language to strike down affirmative action programs. Ninth Circuit
 Carter appointees (and early female circuit judges) Judges Nelson118 and Fletcher119 each
 respectively used either a partial odious quote in a non-color-blind civil rights case, or
 issued a color-blind opinion without the quote. Third Circuit Judge Ambro, a Clinton
 appointee, used a partial odious quote in bemoaning the overall constitutional
 train-wreck associated with Hirabayashi and Korematsu in 2015;120 Eighth Circuit Judge
 Lay, another Johnson appointee, bemoaned the train-wreck without using the quote in
 1987,121 while the reparations litigation was ongoing and the reparations movement was
 gathering steam. Judge Prost, a Bush (Jr.) appointee to the Federal Circuit, and Judge
 Pillard, an Obama appointee to the D.C. Circuit, both used fragments of the quote without
 the trademark term “odious” in color-blind opinions (2002, 2016).122




116
    See Steele v. F.C.C., 770 F.2d 1192 (D.C. Cir. 1985).
117
    See United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990).
118
    See Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985).
119
    See Scott v. Pasadena Unified School Dist., 306 F.3d 646 (9th Cir. 2002).
120
    See Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015).
121
    See McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (Lay, J., conc./diss.).
122
    See Berkley v. United States, 287 F.3d 1076 (Fed. Cir. 2002); Rothe Development Inc. v. United States
    Department of Defense, 836 F.3d 57 (D.C. Cir. 2016).


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 For comparison, the five pre-1980 uses of the quote came from three judges, two of them
 Nixon appointees but perhaps reflecting how Republican judicial appointees of the 1970s
 and earlier were typically less conservative than Republican judicial appointees from
 Reagan onward.123 The very first uses of the entire “odious distinctions” quote came in a
 1949 dissent in a naturalization and expatriation case and in a 1950 dissent in an early
 (and unsuccessful) school desegregation case,124 both written by D.C. Circuit Judge
 Edgerton, appointed by Franklin Roosevelt in 1937. Two other pre-1980 uses both came
 from D.C. Circuit Judge MacKinnon, a Nixon appointee who was once described as being
 politically to the right of Barry Goldwater,125 who used the full quote both in a majority
 opinion in an unsuccessful 1972 school desegregation case and in a dissent to the
 non-rehearing of the Iranian students case in 1979.126 The fourth pre-1980 use came in
 1975 from a Seventh Circuit Nixon appointee who went on to bigger things: John Paul
 Stevens.127
            The twenty-eight complete or partial iterations of the “odious distinctions”
 quote represented the majority (nearly 61%) of the forty-six opinions (15% of the total
 306) that included any quotes from Hirabayashi. Next most popular, used nine times, was
 the “federal power to wage war [successfully]” quote, which appeared almost entirely
 from 1943 to 1949, but did reappear once much later in 2004. “In most circumstances
 irrelevant”, describing racial/ethnic/national origin classifications, was used four times;
 “The Constitution [. . .]does not demand the impossible or the impractical”, twice; and
 Justice Douglas’ concurrence in Hirabayashi, favoring government power in that
 particular context, also twice. Ten quotes came from the Ninth Circuit, eight from the

123
    Compare Tracey E. George, Judicial Independence and the Ambiguity of Article III Protections, 64 OHIO ST. L.J. 221,
    244 (2003).
                  Nixon trial judges are significantly more conservative on economic matters
                  and defendants’ rights than their predecessors.                     Reagan appointees are
                  even more conservative than Nixon as well as Carter judges on criminal issues.
                  And, the relationship is more than simply a party relationship: The particular policy
                  goals of a president are reflected in the decisions of his appointees.
     with Robert A. Carp et al., The Decision-Making Behavior of George W. Bush’s Judicial Appointees, JUDICATURE, July-
    Aug. 2004, at 20.
                  These numbers do not suggest that the decisions of the W. Bush cohort are “off the
                  charts” in terms of their conservative character, but it is fair to say that they are
                  distinctly the most right of center group of judges on record and that they seem to
                  be growing more conservative over time.
124
    See e.g., Lapides v. Clark, 176 F.2d 619 (D.C. Cir. 1949) (Edgerton, J., diss.); see also Carr v. Corning, 182 F.2d 14
    (D.C. Cir. 1950) (Edgerton, J., diss.).
125
    See       generally       George       MacKinnon,WIKIPEDIA(Jan.                     3,       2021,      10:33      PM
    (UTC)),https://en.wikipedia.org/wiki/George_MacKinnon. Judge MacKinnon was also the father of
    feminist scholar and theorist Catharine MacKinnon; see generally Catherine A. MacKinnon, WIKIPEDIA(Dec. 28,
    2021 03:07 AM (UTC))https://en.wikipedia.org/wiki/Catharine_A._MacKinnon
126
    See Bulluck v. Washington, 468 F.2d 1096 (D.C. Cir. 1972); Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979)
    (MacKinnon, J., diss.).
127
    See Eskra v. Morton, 524 F.2d 9 (7th Cir. 1975).


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                                            THE BANALITY OF EVIL ?


 D.C. Circuit, six from the Fourth and five from the Fifth Circuits, four from the Third and
 three from the Sixth Circuits, while the First, Eighth, and Federal Circuits quoted
 Hirabayashi twice, the Seventh, Eleventh, and Emergency Circuits once, and the Tenth,
 never. Aside from Judges O’Scannlain, Smith, and MacKinnon, mentioned above, few
 judges ever quoted Hirabayashi more than once: Third Circuit Judge Goodrich used the
 federal power to wage war quote twice from 1943-45, and First/Emergency Circuit Judge
 Magruder made both uses of the constitution not impractical quote in 1943.



        2.6. HIRABAYASHI: USE IN CONCURRENCES OR DISSENTS

 Judges used Hirabayashi in concurrences or dissenting opinions a total of twenty-three
 times, with sixteen dissents, four concurrences, and three partial concurrences/partial
 dissents.128 Twelve of these twenty-three alternate opinions (52.2%) came from the D.C.
 Circuit alone,           including nine dissents,             two concurrences,           and one partial
 concurrence/dissent. The Ninth Circuit produced three dissents, two in 1946 and 1949,
 one much later in 1999. The Fourth and Fifth Circuits each produced two alternate
 opinions, the Sixth, Seventh, Eighth, and Federal Circuits only one apiece. Five such
 opinions emerged by 1950 (one Seventh Circuit, two Ninth Circuit, two D.C. Circuit),
 another fourteen between 1957 and 1980 (nine from the D.C. Circuit, two each from the
 Fourth and Fifth Circuits, one from the Third Circuit), and four more reflecting the
 changed understanding of Hirabayashi from 1983 onward (one each from the Sixth,
 Eighth, Ninth, and D.C. Circuits). Only three judges dissented or concurred more than
 once, all of them from the D.C. Circuit: Judge Edgerton, with two dissents and one
 concurrence (1949, 1950, 1965), Judge Bazelon (1957, 1969), and Judge Fahy (1957, 1967).
 Although ten of the alternate opinions were in standard criminal cases involving
 concurrent sentences, more “interesting” cases were somewhat likelier to draw dissents
 or concurrences, so the list also includes four civil rights cases, three affirmative
 action/color-blind cases, two Cold War cases involving passport restrictions or refusal to
 answer questions regarding Communist affiliations, and two immigration and
 naturalization cases, among others.




128
      Notably, there were also dissents in two of the reparations cases, both iterations of Hohri v. United States,
      which are not included in the general statistics for reasons explained above. See supra note 44.


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      2.7. HIRABAYASHI: CO‐CITING OF OTHER CASES

 The citing of other cases involving civil rights or the Japanese American experience were
 likely to indicate different use of Hirabayashi from the standard crime/concurrent
 sentences context. As usual, circuits that were more active in use of Hirabayashi were also
 more active in using such other cases. Thus, of the cases also citing major civil rights (or
 constitutional train-wreck) cases such as Scott v. Sandford,129 Plessy v. Ferguson,130 Bolling v.
 Sharpe,131 McLaughlin v. State of Florida,132 or Loving v. Virginia,133 or other notable
 Japanese American precedents such as Ex parte Endo,134 Yasui v. United States,135 Oyama v.
 California,136 or Takahashi v. Fish & Game Comm’n,137 ten such cases were in the D.C. Circuit,
 twelve in the Fifth, nine in the Ninth, six in the Fourth, three in the Second and Sixth,
 two in the Third and Seventh, one in the Eighth and Federal Circuits, and none in the
 FirsT, Tenth, or Eleventh Circuits. Of the forty-eight opinions using any of these other
 cases, twelve were dissents, and eighteen also invoked the “odious distinctions” quote.
 Korematsu was predictably most popular and closely related to Hirabayashi, appearing in
 twenty-five cases; Bolling appeared in thirteen; Loving in eleven; McLaughlin in six; Plessy
 in nine; Dred Scott in two; Endo in seven; Yasui in three; Oyama in two; and Takahashi in one
 case also citing Hirabayashi. Twenty-two (45.8%) of these co-citations come in the period
 after 1983, and many are associated with hand-wringing. Of the nine total invocations of
 Plessy, an especially powerful rhetorical tool, from 1950 to 2015 (1950, 1960, 1969, 1971,
 1998, 1999, 2001, 2006, 2015), five came after the 1990s, four of those in a cluster from
 1998 to 2006. There was relatively little clustering of such additional cited cases by an
 opinion-writing judge, though certain judges relatively more concerned with civil rights
 or writing opinions on more such cases used more co-citations, such as Fifth Circuit
 Judge Rives, who used Plessy in 1960 and Loving, Plessy, and Dred Scott in 1969; D.C. Circuit
 Judge Robinson, who used Bolling, Loving, and McLaughlin in 1968 and Korematsu, Oyama,
 and Takahashi in 1990 (the Jamaican drug dealers case); and D.C. Circuit Judge
 MacKinnon, who used Korematsu, Bolling, and McLaughlin in 1972 and Korematsu, Bolling,
 and Endo in 1979 (the Iranian students case).



129
    Scott v. Sandford, 60 U.S. 393 (1857).
130
    Plessy v. Furgson, 163 U.S. 537 (1896).
131
    Bolling v. Sharpe, 347 U.S. 497 (1954).
132
    McLaughlin v. State of Florida, 379 U.S. 184 (1964).
133
    Loving v. Virginia, 388 U.S. 1 (1967).
134
    Ex parte Endo, 323 U.S. 283 (1944).
135
    Yasui V. United States, 320 U.S. 115 (1943).
136
    Oyama v. California, 332 U.S. 633 (1948).
137
    Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948).


                                                     321
                                            THE BANALITY OF EVIL ?


          3. KOREMATSU (1944): MIND THE GAP!

        3.1. KOREMATSU: USE IN GENERAL, 1945‐1980

 Leaving aside several reparations-related cases that necessarily included much fuller
 discussion of the legal and historical background of the Japanese American internment
 than most other cases, as well as one Ninth Circuit case from early 1944 that discussed
 only earlier developments in the Korematsu litigation before Korematsu (1944) was
 decided, there were 111 federal circuit court cases that included citations of Korematsu,
 four of those including dissents that invoked Korematsu along with the majority opinions,
 for a total of 115 opinions citing Korematsu outside the reparations/exoneration context
 from March 1945 through October 2016.138 Of these, the First Circuit accounted for five
 opinions (4.3% of the total of 115), from 1970 to 2014; the Second Circuit produced ten
 citing cases and twelve citing opinions (10.4%), mostly from 1972-2002, but with a late
 straggler in 2014; the Third Circuit issued eleven citing opinions (9.6%), 1976-2002, plus a
 late straggler in 2015; the Fourth Circuit saw eight cases and nine citing opinions (7.8%)
 between 1970 and 2003; the Fifth Circuit produced seventeen opinions (14.8%), mostly
 between 1966 and 2001 but with early or late outliers in 1945 and 2011; the Sixth Circuit
 wrote seven citing opinions (6.1%), all between 1990 and 1998 but for a late straggler in
 2014; the Seventh Circuit accounted for five opinions (4.3%), mostly from 1973-1994 with
 a late outlier in 2008; the Eighth Circuit saw eight citing opinions (7.0%), mostly from
 1971 to 1991 but with a late straggler in 2010; the Ninth Circuit produced nineteen cases
 and twenty citing opinions (17.4%) in clusters from 1946-1950, 1967-75, 1990-2001, and
 2014-15; the Tenth Circuit issued three opinions (2.6%) in 1985, 1989, and 2004; the young
 Eleventh Circuit saw only a single opinion (0.9%) in 1996; the D.C. Circuit wrote sixteen
 citing opinions (13.9%) in clusters from 1972-79, 1984-1998, and 2010-2016; and the
 Federal Circuit produced a single opinion in 1989.




138
      The annual usage rate of Korematsu (1944), in cases and opinions, is as follows (numbers in parentheses
      indicating years when cases with multiple citing opinions appeared): 1x 1945 & 1947 & 1949, 2x 1946 & 1950,
      0x 1951-1965, 1x 1966 & 1967 & 1969, 2x 1968, 3x 1970, 4x 1971, 6x 1972, 4x 1973, 3x 1974 & 1975 & 1976 &
      1977 & 1978 & 1980, 2x 1979 & 1981 & 1982, 0x 1983, 1x 1984 & 1985, 4(5)x 1986, 2x 1987, 1x 1988, 2x 1989,
      5(6)x 1990, 1x 1991, 4(5)x 1992, 1x 1993, 3x 1994, 3(4)x 1995, 4x 1996, 1x 1997 & 1999, 2x 1998 & 2000 & 2001
      & 2002, 2(3)x 2003, 1x 2004 & 2007 & 2008, 0x 2005 & 2006 & 2009, 2x 2010, 1x 2011 & 2012, 0x 2013, 4x 2014,
      2(3)x 2015, 1x 2016.


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 Perhaps, unlike Hirabayashi (1943), which gave only a tentative Supreme Court
 legal/constitutional stamp of approval to an early phase of the whole internment
 process (although the case was decided well after the whole internment program was
 already well underway and was effectively unstoppable)139 —and which also avoided any
 outright dissents, largely due to Chief Justice Stone’s successful cajoling of an already
 uneasy Justice Murphy140 —Korematsu (1944), which gave a more final stamp of approval
 to the proceedings,141 and which included three ringing, stinging dissents, may have
 been tacitly recognized by the rest of the American judiciary from an earlier date as
 something fundamentally heavier, darker, more solemn, and better to avoid. At any rate,
 unlike Hirabayashi, with its active career as an authority justifying federal wartime and
 general powers even before its primary role as a criminal procedure authority, which
 saw Hirabayashi cited forty-eight times by 1950 and 145 times by the end of 1966,
 Korematsu was cited only seven times (6.1 % of the total 115 opinions) through the end of
 1950, then was entirely forgotten by the federal circuits until December 1966—a rather
 lengthy gap of sixteen years at a time when American civil rights law and issues were
 developing rapidly, and notwithstanding the U.S. Supreme Court’s prominent
 invocations of Korematsu in both Bolling v.                    Sharpe (1954, the companion to the
 better-known Brown v. Board) and McLaughlin v. Florida (1964).
           All but one of the seven pre-1951 uses of Korematsu were in the Ninth Circuit—the
 original home circuit for the Korematsu litigation that also included all previous mid-level
 appellate activity, and where (possibly earlier-anxious, later perhaps relieved-feeling)
 local circuit judges likely perceived the Supreme Court’s opinion to have justified their
 earlier actions in the already controversial case. The Ninth Circuit thus had more than

139
    Concerning the historical and political realities confronted by the Supreme Court justices regarding both
    Hirabayashi and Korematsu—in particular, the fact that the most the Court could have hoped to accomplish,
    practically, by reversing either case would have been a largely ineffectual, politically unpopular empty
    gesture that would have left the Japanese Americans stuck in internment camps through the end of the
    war, regardless—see, e.g., Dewey, supra note 10, at 83-90. Another of history’s greatest demonstrations of
    the actual powerlessness of the U.S. Supreme Court in the face of a tide of public opinion involved another
    historic mass violation of human rights, the federal government’s forcible removal of the Cherokee Nation
    and neighboring tribes from their ancestral homelands in the southeastern United States in the 1830s,
    notwithstanding the Court’s upholding of the Cherokees’ rights in Worcester v. Georgia, 31 U.S. 515 (1832).
140
    Murphy, a former Governor General of the Philippines who was unusually racially progressive and aware for
    his times regarding Asians and Asian Americans, initially considered dissenting in Hirabayashi. Regarding
    this episode, see Craig Green, Wiley Rutledge, Executive Detention, and Judicial Conscience at War, 84 WASH. U.
    L. REV. 99, 128 (2006). [Murphy, interestingly, also apparently spent much of his adult life in an unofficial,
    secret, but committed early-day gay marriage to his lifelong partner. This may have given him additional
    insight and sensitivity regarding marginalized minorities—though if so, the same process apparently didn’t
    happen with his contemporary, the F.B.I.’s J. Edgar Hoover].
141
    Emphasizing the more tentative nature of Hirabayashi as against the permanence of Korematsu, Justice
    Jackson, in his Korematsu dissent, accused his fellow “brethren” in the majority of having pulled a legal-
    constitutional bait-and-switch: “The Court is now saying that in Hirabayashi we did decide the very things
    we there said we were not deciding”. Korematsu, 323 U.S. at 247 (Jackson, J., diss.).


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                                          THE BANALITY OF EVIL ?


 usual reason to wave Korematsu around. Four cases from the 1940s (two in 1946, one in
 1947 and 1949) all concerned federal war powers and the validity of the relocation orders
 leading to the internment, in cases involving Japanese Americans who failed to report
 for military service142 or sought to renounce their U.S. citizenship,143 an Anglo radical
 who violated an order excluding him from the West Coast,144 and the wartime Alien
 Property Custodian (in a case involving German- rather than Japanese-owned property
 that raised questions regarding federal preemption of California state law).145 Two early
 Cold War cases that followed in 1950 involved false swearing or refusal to answer
 questions regarding Communist affiliations.146 The last of these latter two cases, perhaps
 somewhat ironically, involved (selective) use of Justice Jackson’s dissent to support
 federal power and judicial restraint in attempting to oversee military authorities: “In the
 very nature of things, military decisions are not susceptible to intelligent judicial
 appraisal. They do not pretend to rest on evidence, but are made on information that
 often would not be admissible and on assumptions that could not be proved”.147 The
 only other very early use of Korematsu came from the Fifth Circuit in 1945 and involved
 the tamer issues of wartime gasoline rationing and the general federal power to delegate
 regulatory authority.148 After its prolonged dormant period from 1950-1966, Korematsu
 finally reappeared and made its initial debut as a civil rights precedent in federal circuit
 jurisprudence in a December 1966 opinion in a Fifth Circuit case involving school
 desegregation, United States v. Jefferson County Board of Education.149 The opinion, by Judge
 John Minor Wisdom, one of the civil rights heroes of the Old Fifth Circuit, ironically
 confused Korematsu with Hirabayashi, citing the former for the latter’s signal quote:
 “Classifications based upon race are especially suspect, since they are «odius to a free
 people»”.150       Notwithstanding this early hiccup, after another early rediscovery of
 Korematsu in a 1967 Ninth Circuit dissenting opinion questioning racial segregation in
 prisons,151 the Fifth Circuit provided the next three uses of Korematsu through early
 1969,152 in two (successful) civil rights cases involving prison reading materials and equal


142
    See Hideichi Takeguma v. United States, 156 F.2d 437, 439 (9th Cir. 1946).
143
    See e.g., Acheson v. Murakami, 176 F.2d 953, 953 n.1 (9th Cir. 1949).
144
    See e.g., DeWitt v. Wilcox, 161 F.2d 785, 787-788, 790-791 (9th Cir. 1947).
145
    See e.g., Allen v. Markham, 156 F.2d 653, 650-660 (9th Cir. 1946).
146
    See Alexander v. United States, 181 F.2d 480, 487 n.1 (9th Cir. 1950); Bridges v. United States, 184 F.2d 881,
    887 (9th Cir. 1950).
147
    Bridges 184 F.2d at 887, quoting Korematsu at 245 (Jackson, diss.).
148
    See Randall v. United States, 148 F.2d 234, 235 (5th Cir. 1945).
149
    United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966). The case is sometimes
    referred to as a 1967 case because it could not have any effective impact until 1967, but the opinion issued
    on December 29, 1966.
150
    Id. at 871 (citing only Korematsu at 216, meaning to also cite Hirabayashi at 100).
151
    Toles v. Katzenbach, 385 F.2d 107, 110 (Browning, J., diss.).
152
    Regarding the Fifth Circuit’s early and visible leadership on civil rights issues even in relatively hostile
    territory, see supra note 63.
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 employment,153 along with a Vietnam draft resister’s (unsuccessful) case.154 The latter
 two civil rights cases basically recited the “McLaughlin mantra”, from the 1964 Supreme
 Court opinion in which Justice White pulled various snippets of language from earlier
 cases such as Korematsu, Hirabayashi, and Bolling out of context and cobbled them together
 into the high Court’s first comprehensive statement of the strict scrutiny standard for
 racial and other constitutionally suspect classifications.155 The Vietnam draft case made
 the sole use of Justice Frankfurter’s pro-government concurrence in Korematsu to appear
 in any circuit opinion and summarized Frankfurter’s argument: “[C]onsiderations of
 national defense may render lawful what would be unlawful in a different context”.156
            Thus, most circuits did not rediscover Korematsu until 1970 or later. When they
 did, though, they brought a comparative surge of thirty-seven uses from 1970-1980 (32.2%
 of the total 115 opinions; almost the same as the number of civil rights-related cases from
 1966-1980)—three times a year in almost every year except 1972 (a peak of six uses) and
 1971 and 1973 (each with four uses). These were spread across various jurisdictions. The
 Fourth Circuit came relatively early to the party with four uses (one in 1970, two in 1971,
 one in 1975); the Third Circuit came relatively late, though actively, with six uses (two in
 1976, three in 1978, one in 1980). The Second Circuit arrived relatively early, with four uses
 (two in 1972, one in 1973 and 1975). The Fifth Circuit added six more uses (two in 1972,
 1974, two in 1977, 1980). The Eighth Circuit saw four uses (1971, two in 1974, 1980). The
 Ninth Circuit added only three, relatively early (1970, 1971, 1975). The D.C. Circuit showed
 six uses, most relatively early (two in both 1972 and 1973, 1977, 1979). Some other circuits
 were apparently less impressed. The First (1970, 1976) and Seventh (1973, 1979) Circuits
 both saw only two uses. The Sixth, Tenth, and Federal Circuits never cited Korematsu even
 once during the pre-1980 Civil Rights era. The Eleventh Circuit did not yet exist.



153
    See Jackson v. Godwin, 400 F.2d 529, 537 (Tuttle, J.); see also Baker v. City of St. Petersburg, 400 F.2d 294, 295,
    297-298 (Wisdom, J.).
154
    See Simmons v. United States, 406 F.2d 456, 459 (Ainsworth, J.).
155
    McLaughlin, 379 U.S. at 191-93; see Dewey, supra note 10, at 118-121 (discussing in detail the linguistic
    evolution of the strict scrutiny standard in McLaughlin). The full McLaughlin mantra reads as follows:
                Normally, the widest discretion is allowed the legislative judgment ***; and normally
                that judgment is given the benefit of every conceivable circumstance which might
                suffice to characterize the classification as reasonable rather than arbitrary and
                invidious. [Citations] But we deal here with a classification based upon the race
                of the participants which must be viewed in light of the historical fact that the
                central purpose of the Fourteenth Amendment was to eliminate racial discrimination
                emanating from official sources in the States. This strong policy renders racial
                classifications “constitutionally suspect”, [Bolling v. Sharpe at 499] and subject to
                the “most rigid scrutiny”. [Korematsu at 216], and ‘in most circumstances irrelevant’
                to any constitutionally acceptable legislative purpose, [Hirabayashi at 100].
156
    Simmons v. United States, 406 F.2d 456, 459 (5th Cir. 1969) (citing Korematsu at 224-225 (Frankfurter, J.,
    conc.))].


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                                             THE BANALITY OF EVIL ?


        3.1.1. CIVIL RIGHTS CASES, 1966‐1980:

 Nearly all circuit cases and opinions citing Korematsu in the 1970s concerned civil rights
 to one degree or another. Only five of the thirty-seven cases did not: four concerned
 federal powers and constitutionality in the context of the Federal Drivers Act (creating
 exceptions to the wider Federal Tort Claims Act), the Federal Firearms Act, and the Social
 Security act; the fifth concerned attorney disciplinary standards.                           However, of the
 remaining thirty-two pre-1980 cases and opinions (27.8% of 115 opinions) citing
 Korematsu in which civil rights arguments were raised, usually involving equal
 protection, in over half the cases (seventeen of thirty-seven opinions, 1966-80; 14.8% of
 115 total), the courts rejected such bids to extend civil rights further. Granted, attorneys
 during the Civil Rights era presumably had an overall incentive to make relatively
 freewheeling equal protection or other arguments, throw them at the wall of the court,
 and see which would stick. Some such arguments probably were better than others,
 while some may have been easier for courts to reject. Yet already from the beginning of
 the decade, courts appear to have been offering significant push-back to claims for
 expanded civil rights. Eleven of the cases rejecting civil rights arguments were decided
 from 1970-74, seven of those just in 1971-72, followed by two in both 1976 and 1977, one
 in 1979 and 1980. Of the fifteen cases (13% of 115 opinions) that did advance civil rights
 between 1971 and 1980, nine appeared from 1971-1975, three of those in 1975 alone,
 followed by two cases in both 1978 and 1980, one in 1977 and 1979.157
              Although civil rights advocates continued to win some battles among the cases
 citing Korematsu, the overall momentum of civil rights activity appeared to have been
 somewhat blunted, with fewer numbers of both wins and losses during the second half of
 the decade—at least judging by this sample of cases in which Korematsu usually played a
 minor role. Notably, five of the seventeen opinions in cases rejecting civil rights claims
 were dissents in which particular judges invoked Korematsu while urging their
 “brethren” to be more sensitive to the civil rights issues raised, in cases involving rights
 of draft resisters, privacy rights, gender and equal opportunity in education, free speech,
 and immigration/nationality (the D.C. Circuit’s Iranian students case). Three of those
 dissents appeared in the later period (1976, 1977, 1979). Among the cases that accepted
 civil rights claims, there were two dissents: one from the first case on that list, from the
157
      One case was, more than most, arguably both a victory and a loss for civil rights. In Drummond v. Fulton
      County Dept. of Family and Children’s Services, 547 F.2d 835, 852 (5th Cir. 1977), the circuit court reversed
      the district court’s finding that white, would-be adoptive parents of a Black foster child had no fundamental,
      constitutional rights violated by a local government policy favoring Black adoptive parents for Black foster
      children. The circuit court thus arguably upheld the rights of the white parents and Black child at the
      expense of (Black nationalist-derived) “community rights” arguments then in vogue regarding placement
      of Black foster children.


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 Fourth Circuit in 1971, concurring and dissenting because the other judges had not
 adopted an even stronger position in favor of school desegregation; the second, the very
 last case on the list, from the Third Circuit in 1980, in which a conservative judge
 criticized his colleagues for accepting a program to aid low-income litigants on only
 rational basis rather than strict scrutiny grounds. Those two dissents perhaps provide
 appropriate bookends to the whole decade during which civil rights initially advanced,
 then gradually stalled.158
           The 1970-80 civil rights-related cases citing Korematsu involved a range of
 different rights claims and issues, though with a few recurring themes. In nine cases,
 defendants/parties raised equal protection arguments regarding criminal prosecutions
 or post-conviction felon status. Six concerned equal employment, mostly regarding race
 or ethnicity, but with a successful gay (non-military) litigant on the issue also
 surfacing.159 Three cases concerned traditional sex/gender discrimination, two of those
 also concerning equal employment,160 the other a challenge to an all-male public
 school.161 Three cases concerned racial desegregation of schools, the first two earlier and


158
    For an interesting brief discussion of the wider phenomenon of the progress of civil rights stalling, see,
    e.g., Shaylyn Romney Garrett & Robert D. Putnam, Why Did Racial Progress Stall in America?, N.Y. Times, Dec.
    4, 2020, https://www.nytimes.com/2020/12/04/opinion/race-american-history.html(briefly summarizing
    research results from the authors’ recent book, ROBERT D. PUTNAM AND SHAYLYN ROMNEY GARRETT, THE
    UPSWING: HOW AMERICA CAME TOGETHER A CENTURY AGO AND HOW WE CAN DO IT AGAIN (2020). Garrett
    and Putnam juxtapose what they present as the established mythology of the Civil Rights movement—
    no progress on the issues for decades until a sudden upswing in the 1960s—with their findings of gradual
    but significant progress in earlier decades that began to stall around 1970: “These data reveal a too-slow
    but unmistakable climb toward racial parity throughout most of the century that begins to flatline around
    1970—a picture quite unlike the hockey stick of historical shorthand”. Specifically regarding the 1970s, it is
    possible to see rather clearly, with hindsight, that the process that began in 1968—a majority of Americans
    gradually turning their backs on President Lyndon Johnson and his relatively aggressive civil rights agenda,
    and rejecting Democratic presidential candidate Hubert Humphrey, a life-long champion of civil rights, in
    favor of Republican candidate Richard Nixon, whose “Southern Strategy” of appealing to conservative white
    southern Democrats and their often pre-civil rights racial attitudes to convert the South to Republicanism
    tacitly announced that the new administration would be much less aggressive on civil rights matters,
    regardless of any politically necessary countervailing empty rhetoric to the contrary—ultimately and
    perhaps almost inexorably led to the election of Ronald Reagan in 1980 on an arch-conservative platform
    that much more overtly opposed the further extension of civil rights. Ironically, though (and based upon
    personal experience), because various civil rights battles were still being fought, and some of them even
    won, during the 1970s, it likely was difficult for civil rights advocates at the time to fully recognize the
    degree to which the tide already had turned against them by the early 1970s. This meant that the election
    of Reagan in 1980 came as a greater shock to liberals than it otherwise might have. The overall trajectory
    of America lurching in an ever more conservative direction since then—under the leadership of the likes
    of Newt Gingrich, George W. Bush, and Donald Trump, all of whom make Reagan look moderate and
    Nixon look downright liberal by comparison—is well-known and widely recorded. For more on the already
    predominantly conservative trajectory of the United States in the 1970s, see, e.g., EDSALL & EDSALL, supra note
    18, 74-115.
159
    See Van Ooteghem v. Gray, 628 F.2d 488, 500 (5th Cir. 1980).
160
    See Struck v. Secretary of Defense, 460 F.2d 1372, 1378 (9th Cir. 1971) (pregnancy in the military); Wood v.
    Mills, 528 F.2d 321, 323 (4th Cir. 1975) (unequal pay and gender disparity among prison employees).
161
    See Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880, 894 (3d Cir. 1976) (Gibbons, J., diss.).


                                                        327
                                         THE BANALITY OF EVIL ?


 more traditional (and both unsuccessful),162 the last of those a challenge by Black
 students to programs designed to guarantee some fraction of other racial/ethnic
 backgrounds in particular schools.163 Other issues, from zoning and redistricting to
 hair-length ordinances, also made sporadic appearances.
           Regarding “wins” or “losses” for civil rights during the 1970s, most
 “participating” jurisdictions saw some of each. The Third Circuit was somewhat striking,
 with three “wins” from 1978 onward and only one “loss”, the gender equality/education
 case in 1976 (which drew a dissent).164 The Fifth Circuit was also striking, with four
 “wins” and two “losses”, all of them spread over time from 1972-1980. The Second Circuit
 saw two “wins” and one “loss”, with one majority opinion in a successful case plus a
 dissent in the unsuccessful one both contributed by Judge Feinberg (both in 1972). The
 First Circuit had two cases rejecting civil rights arguments, both authored by Judge
 Coffin.     Those were the only near-patterns visible among opinion-writers citing
 Korematsu during the 1970s (other than Judge Winter of the Fourth Circuit using
 Korematsu both in the 1971 school desegregation concurrence/dissent and briefly in
 passing in a non-civil rights 1970 case involving the Federal Drivers Act). Returning to
 civil rights wins or losses at the circuit level, the Seventh and Ninth Circuits had one in
 each column. The Eighth and D.C. Circuits, along with the First, perhaps showed more
 clearly the direction the nation was headed as it moved toward the 1980s and the
 election of Ronald Reagan: the Eighth had only one win and three losses; the D.C. Circuit,
 one win against five losses in cases involving civil rights claims, with dissents in the last
 two losses (1977, 1979).



      3.2. KOREMATSU: USE IN GENERAL, 1981‐2016

 There were sixty-three cases (57.8% of 111) and sixty-seven opinions (58.2% of 115) not
 specifically associated with Japanese American reparations and exoneration that cited
 Korematsu from 1981 to 2016. The First Circuit produced three of these opinions (4.5% of
 67) in 1986, 2007, and 2014. The Second Circuit accounted for six cases and eight
 opinions (11.9%), with two cases (three opinions) in 1986, one case (two opinions) in
 1995, and other cases/opinions in 2000, 2002, and 2014. The Third Circuit saw five
 opinions (7.5%) in 1981, 1990, 1993, 2002, and 2015. The Fourth Circuit saw four cases and
 five opinions (7.5%) in 1982, 1995, 1996, and 2003 (two opinions).

162
    See Wright v. Council of City of Emporia, 442 F.2d 588, 595 (4th Cir. 1971) (Winter, J., diss.); Bulluck v.
    Washington, 468 F.2d 1096, 1116 (D.C. Cir. 1972).
163
    See Johnson v. Board of Ed. of City of Chicago, 604 F.2d 504, 515 (7th Cir. 1979).
164
    See Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880, 894 (3d Cir. 1976) (Gibbons, J., diss.).


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 The Fifth Circuit, one of the more active users of Korematsu in the pre-1981 period, was less
 so in the post-1980 period, with six opinions (9.0%) appearing in 1982, 1992, 1996, 2000,
 2001, and 2011. By contrast, all seven uses of Korematsu in the Sixth Circuit (10.4%) were
 post-1981: in 1990, two in 1992, 1994, 1996, 1998, and 2014. The Seventh Circuit, among
 the less active users of Korematsu pre-1980, saw three additional uses (4.5%) in 1986, 1994,
 and 2008. The Eighth Circuit saw four of its total of eight uses of Korematsu in 1981, 1987,
 1991, and 2010 (6.0%). The Ninth Circuit, a relatively major user of Korematsu before 1981,
 remained so after 1980, with nine cases and ten opinions (14.9%), starting after a long gap
 since 1975 with two cases (three opinions) in 1990, one in 1995, 1997, 1999, 2001, 2003, 2014,
 and 2015. The Tenth Circuit produced only three opinions (4.5%), all post 1981, in 1985,
 1989, and 2004. The Eleventh Circuit’s single opinion (1.5%) came in 1996. The D.C. Circuit
 wrote ten post-1980 opinions (14.9%)—more than half their total of sixteen Korematsu-
 citing opinions, even leaving out the two iterations of the Hohri reparations litigation they
 heard in 1986—in 1984, 1987, 1990, 1992, 1994, 1998, 2010, 2012, and 2016. The Federal
 Circuit wrote its single Korematsu-citing opinion in 1989.
           Grouping all the post-1980 cases and opinions together might be slightly
 misleading, in that of course there were very significant political developments over the
 course of the 1980s regarding Korematsu, Hirabayashi, and other Japanese American
 internment cases from the 1940s: by the early 1980s, especially by about 1983-85, it was
 already clear that there was “trouble” with the cases, including a growing movement to
 overturn them and the 1982 congressionally commissioned study that attributed the
 Japanese American internment to racism;165 but it wasn’t until 1988 that Congress gave
 federal courts clear instructions as to just what to think about the problematic cases.166
 So to provide more detail: again, leaving aside the important Hohri and Hirabayashi
 reparations/exoneration litigation that reached the Ninth and D.C. Circuits during
 1986-87, only thirteen of the other sixty-seven post-1980 federal circuit opinions citing
 Korematsu (19.4%) appeared before 1989, and of those, eight (11.9%) came while the Hohri
 and Hirabayashi re-litigation was already very visibly underway. The other fifty-four
 post-1980 opinions—80.6%, and nearly 47% of the 115 opinions citing Korematsu—all
 appeared after Congress’s formal apology and reparations in 1988.




165
    Comm’n on Wartime Relocation and Internment of Civilians, Personal Justice Denied 18 (1982),
    https://www.archives.gov/research/ japanese-americans/justice-denied [readers accessing the website
    from a country different than the U.S.A. might experience automatic redirection to the homepage of the
    National Archives website].
166
    See generally Civil Liberties Act, 50 U.S.C. app. §§ 1989b–1989b9 (1988) (current version as amended at 50
    U.S.C. §§ 4211–4220 (2012 & Supp. III 2015).


                                                     329
                                             THE BANALITY OF EVIL ?


 The overwhelming majority of the post-1980 cases and opinions—forty-one (65.4% of the
 sixty-three post-1980 cases, 36.9% of the total of 111 cases citing Korematsu)—involved a
 wide variety of civil rights claims. Another ten post-1980 cases involved federal drug
 prosecutions that often included potential civil rights implications. Eleven other cases
 involved other legal issues, including, among others, the Federal Tort Claims Act and
 qualified immunity, Social Security benefits, destruction of foreign property in the “War
 on Terror”, military veterans whose commanders deliberately exposed them to radiation
 during early atomic weapons tests, and a challenge to Minnesota’s code of judicial
 conduct, along with three other federal criminal prosecutions.167
              Most of the ten “ordinary” drug cases apparently were seen by panel majorities
 as relatively straightforward criminal prosecutions not especially concerning civil rights
 beyond the usual Fourth Amendment search and seizure issues, but nine of the ten cases
 drew concurrences or dissents in which a panel member nevertheless raised the specter
 of improper racial classifications and invoked Korematsu for purposes of warning and/or
 hand-wringing. Five drug cases came from the Sixth Circuit (two in 1992, one in 1990,
 1994, and 1996), and four of those included concurrences or dissents (two of each) from
 Judge Nathaniel R. Jones, an African American jurist who repeatedly and urgently warned
 against the “War on Drugs” being allowed to repeat the unconstitutional excesses and


167
      Two of the most interesting “other cases” not concerning ordinary civil rights claims were a rare
      internment/reparations case not involving Japanese Americans (Jacobs v. Barr, 959 F.2d 313 (3d Cir. 1992)
      and parents’ successful civil suit against Hamas for the death of their son at the hands of terrorists (Boim
      v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008). In the former case, the
      appellant, a German American citizen born in the United States who had been interned along with his non-
      citizen father at a (mostly) Japanese American internment camp, asked why he hadn’t received reparations.
      Judge Mikva of the Third Circuit more or less tut-tutted him, noting that Congress had found that only
      Japanese Americans had suffered violations of their rights, so only they could receive reparations. In the
      latter case, dissenting Judge Rovner warned:
                   The murder of David Boim was an unspeakably brutal and senseless act, and I can
                   only imagine the pain it has caused his parents. Terrorism is a scourge, but it
                   is our responsibility to ask whether it presents so unique a threat as to justify
                   the abandonment of such time-honored tort requirements as causation. Our own
                   response to a threat can sometimes pose as much of a threat to our civil liberties and
                   the rule of law as the threat itself. See, e.g., [Korematsu].
      549 F.3d at 718-19. In the military veterans radiation exposure case, dissenting Judge Gibbons invoked
      Korematsu in warning against the over-extension of absolute immunity to federal officials. Jaffee v. United
      States, 663 F.2d 1226, 1252 (3d Cir. 1981). Gibbons’ dissent was a relatively early example of a federal judge
      calling Korematsu into question, and remained somewhat indirect and circumspect in doing so:
                   In 1949, when Judge L. Hand wrote the Gregoire opinion, the notion of absolute
                   official immunity for federal officers probably seemed a politically attractive idea.
                   We had recently fought a war in which many things had been done which were
                   thought necessary for victory, but which with the benefit of hindsight, probably
                   would seem quite inconsistent with our concept of democracy and its traditions
                   of personal integrity and individual freedoms. [See, e.g., [Korematsu] (legitimizing
                   wholesale internments of Japanese)]. It was perhaps a fortunate fortuity that the
                   Gregoire issue did not reach the Supreme Court for some time.


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 abuses of an earlier war.168 In the only Sixth Circuit case in which Judge Jones was not on
 the panel, the defendants raised, but the panel rejected, what would become the
 often-repeated argument that federal laws and aggressive prosecution directed at crack
 cocaine involved improper de facto racial classifications and disparities constituting
 equal protection violations.169 The other drug cases appeared in the First Circuit (1986),
 Fourth Circuit (1982), Fifth Circuit (2000 and 2001), and Eighth Circuit (1991).



      3.2.1. CIVIL RIGHTS CASES, 1981‐2016:

 Returning to the main category of post-1980 cases citing Korematsu (cases generally
 involving civil rights), although judicial pushback against the further spread of civil
 rights and rejection of rights claims may already have been visible in Korematsu-citing
 cases from the early 1970s onward, that overall trend only intensified after 1980. In
 twenty-eight of the forty-one civil rights-related post-1980 cases (69.3%), courts rejected
 equal protection claims, affirmative action initiatives, or other civil rights arguments. Of
 these rejections, only five appeared from 1982-87, followed by a pronounced cluster of
 eleven from 1989-96, a still strong but dwindling collection of seven from 1997-2004, and
 five late strays from 2007-2016 (three of those just in 2014).
            Such rejections of civil rights claims were spread throughout the various circuits,
 though some more than others. [And some circuits that may have been equally active in
 rejecting civil rights claims may of course have done so without ever invoking Korematsu
 in the process]. The First Circuit saw two post-1980 unsuccessful civil rights cases citing
 Korematsu (2007, 2014); the Second, three (1995, 2000, 2014); the Third, three (1990, 1993,
 2002); the Fourth, three (1995, 1996, 2003); the Fifth, two (1982, 1996); the Sixth, none;
 the Seventh, one (1994); the Eighth, one (1987); the Ninth, four (1990, 1997, 2003, 2014);
 the Tenth, two (1985, 2004); the Eleventh, one (1996); the D.C. Circuit, five (1984, 1987,
 1994, 1998, 2016); and the Federal Circuit, one (1989). Fifteen of the twenty-one cases
 included dissenting opinions from more rights-conscious judges questioning their bench
 colleagues: one of the two from the First Circuit, all three from the Second, two of three
 from the Third, one of three from the Fourth, the only case from the Eighth, three of four
 from the Ninth, both cases from the Tenth, and two of five from the D.C. Circuit. No
 patterns in authorship were visible beyond that Judge Betty Fletcher of the Ninth Circuit

168
    See United States v. Inman, 902 F.2d 35 (6th Cir. 1990) (Nathaniel R. Jones, J., conc.); United States v. Taylor,
    956 F.2d 572, 592 (6th Cir. 1992) (Nathaniel R. Jones, J., diss.); United States v. Harvey, 24 F.3d 795, 799 (6th
    Cir. 1994) (Nathaniel R. Jones, J., diss.); United States v. Smith, 73 F.3d 1414, 1422 (6th Cir. 1996) (Nathaniel
    R. Jones, J., conc.).
169
    See United States v. Reed, 977 F.2d 584 (6th Cir. 1992).


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                                           THE BANALITY OF EVIL ?


 wrote two of the three rights-conscious dissents, while conservative Judge Lawrence
 Silberman of the D.C. Circuit wrote two of that circuit’s five majority opinions rejecting
 rights claims.
            The rights raised and rejected included a diverse range of issues, though with a
 few recurring themes. Three cases involved unsuccessful challenges to pre-2000 rules on
 gays in the military and the Clinton administration’s legendarily problematic “Don’t Ask,
 Don’t Tell” policy (1989, 1996, 1997),170 while another case rejected a lesbian applicant’s
 allegation of employment discrimination by the Federal Bureau of Investigation (1987).171
 Four cases involved undocumented immigrants; two of those also specifically concerned
 denial of health benefits (1990, 2004, two in 2014).172 Several cases involved prison and
 prisoner issues, including the availability of prison reading materials in Japanese (1994),173
 prisoners’ access to nude photos of loved ones (1995),174 prisoners classified as special
 security threats (2002),175 racial segregation in prison (2003),176 and prisoners’ access to
 sex-change surgery (2014).177 Two additional unsuccessful rights claims concerned drug
 testing of prison staff (1987)178 and of national security employees (1990).179 Two cases
 that produced sharp dissents concerned the rights of enemy combatants in the unending
 “War on Terror” (2003, 2016).180
            Of the thirteen cases citing Korematsu that saw civil rights claims upheld, seven
 (over half) appeared in 1990 or earlier, three of those in 1986 alone; while six other cases
 appeared between 1999 and 2015, three of those just from 2014-2015. Successful cases
 were limited to fewer circuits: the First, Fourth, Eighth, Eleventh, and Federal Circuits
 saw none; the Second Circuit had three, two of those finding the court taking a stand on
 pretrial detention in 1986;181 the Third Circuit, one, concerning surveillance of Muslim
 communities as religious discrimination (2015);182 the Fifth Circuit, one, concerning
170
    See Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see Thomasson v. Perry, 80 F.3d 915, 927
    (4th Cir. 1996); see also Philips v. Perry, 106 F.3d 1420, 1439 (9th Cir. 1997) (Fletcher, J., diss.).
171
    See Padula v. Webster, 822 F.2d 97, 102 (D.C. Cir. 1987).
172
    See Flores by Galvez-Maldonado v. Meese, 934 F.2d 991, 1014 (9th Cir. 1990) (Fletcher, J., diss.); Soskin v.
    Reinertson, 353 F.3d 1242, 1265 (10th Cir. 2004) (health benefits); Korab v. Fink, 797 F.3d 572, 588 (9th Cir.
    2014) (health benefits); Maldonado v. Holder, 763 F.3d 155, 174 (2d Cir. 2014) (Lynch, J., dissenting).
173
    See e.g., Kikumura v. Turner, 28 F.3d 592, 599 (7th Cir. 1994).
174
    See Giano v. Senkowski, 54 F.3d 1050, 1062 (2d Cir. 1995) (Calabresi, J., dissenting).
175
    See Fraise v. Terhune, 283 F.3d 506, 530 (3d Cir. 2002) (Rendell, J., dissenting).
176
    See Johnson v. California, 336 F.3d 1117, 1119 (9th Cir. 2003) (Ferguson, J., dissenting).
177
     See Kosilek v. Spencer, 774 F.3d 63, 113 (1st Cir. 2014) (Thompson, J., dissenting).
178
    See McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (Lay, J., conc./dissenting).
179
    See Hartness v. Bush, 919 F.2d 170, 175 (3d Cir. 1990) (Edwards, J., dissenting).
180
    See Hamdi v. Rumsfeld, 337 F.3d 335, 373, 375-76 (4th Cir. 2003) (Motz, J., dissenting); Bahlul v. United States,
    840 F.3d 757, 837 (D.C. Cir. 2016) (Rogers, J., dissenting).
181
    See United States v. Melendez-Carrion, 790 F.2d 984, 1004 (2d Cir. 1986); United States v. Salerno, 794 F.2d 64,
    74 (2d Cir. 1986); Patrolmen’s Benevolent Ass’n. of City of New York v. City of New York, 310 F.3d 43, 53 (2d
    Cir. 2002).
182
    See Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015).


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 racial preferences in university admissions (and later even upheld by the U.S. Supreme
 Court!) (2011);183 the Sixth Circuit, one, finding gun rights for the mentally ill subject to
 strict scrutiny (2014);184 the Seventh Circuit, one, finding dismissal of a Korean doctor to
 require strict scrutiny on racial/ethnic grounds (1986);185 the Ninth Circuit, three,
 concerning free speech and public protest, racial balancing at a university laboratory
 school, and immigration detention/flight risk (1990, 1999, 2015);186 the Tenth Circuit,
 one, concerning the Fourth Amendment and search of a home;187 and two slightly
 unusual cases from the D.C. Circuit, both written by Judge Robinson, an African
 American jurist and formerly a distinguished civil rights attorney.
            Robinson’s two opinions, both of them ultimately based on national origins
 grounds, are perhaps both somewhat notable as exceptions to overall patterns. The first
 case, in 1988, involved a clash between freedom of speech and privacy: a newspaper
 sought to use the Freedom of Information Act to learn the U.S. citizenship status of a
 medical doctor who later was a prominent figure in the Iranian government. The district
 court favored the newspaper; the D.C. Circuit reversed, applying strict scrutiny to defeat
 the First Amendment claim where national origins were concerned.188 The other case
 involved federal prosecution of unusually successful and aggressive Jamaican drug
 dealers. In the district court, expert police testimony as to the drug dealers’ alleged
 Jamaican origins, associations, and characteristic methods and mannerisms was
 admitted, but the D.C. Circuit, hewing to a strict “color-blind” standard on national
 origins, applied strict scrutiny and ruled the expert evidence inadmissible.189 Thus, as
 with the much later Muslim surveillance case, in which the Third Circuit also applied a
 strict “color-blind” standard in a situation largely involving ethnic and/or national
 origins,190 “color-blind” strict scrutiny could still sometimes be used to affirm civil rights
 in particular contexts, even as it was being used much more frequently and successfully
 to torpedo affirmative action programs and other efforts to address structural racism.191



183
    See Fisher v. University of Texas at Austin, 631 F.3d 213, 248 (5th Cir. 2011) (Garza, J., concurring).
184
    Although the Sixth Circuit had no cases citing Korematsu that rejected civil rights claims, their one case citing
    Korematsu that upheld civil rights claims was a peculiar one, applying strict scrutiny to gun rights for mental
    health patients. Tyler v. Hillsdale County Sheriff ’s Dept., 775 F.3d 308, 329 (6th Cir. 2014).
185
    See e.g., Doe on Behalf of Doe v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411, 418 (7th Cir. 1986).
186
    See Bay Area Peace Navy v. United States, 914 F.2d 1224, 1232-1233 (9th Cir. 1990); Hunter ex rel. Brandt v.
    Regents of University of California, 190 F.3d 1061, 1075 (9th Cir. 1999); Rodriguez v. Robbins, 804 F.3d 1060,
    1074 (9th Cir. 2015).
187
    See e.g., O’Rourke v. City of Norman, 875 F.2d 1465, 1467 n.1 (10th Cir. 1989).
188
    See generally Washington Post Co. v. U.S. Dept. of State, 840 F.2d 26, 35 n.66 (D.C. Cir. 1988).
189
    See United States v. Doe, 903 F.2d 16, 21-22 (D.C. Cir. 1990).
190
    See Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015).
191
    See Gotanda, supra note 8; Bedi, supra note 8; Washington, supra note 8.


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                                            THE BANALITY OF EVIL ?


 Unlike the rights-rejecting post-1980 cases, with their numerous dissents, the post-1980
 rights-affirming opinions generated only three dissents invoking Korematsu: one, a
 conservative judge grumbling that a university laboratory school’s admissions policies
 should have been subjected to “color-blind” strict scrutiny;192 the other two found more
 conservative judges complaining that their colleagues had no business either invoking
 Korematsu or further extending rights in their majority opinions.193



      3.3. KOREMATSU: USE AS A PROXY FOR RACIAL CLASSIFICATIONS, AND
      OTHER USES

 Perhaps the single most interesting pair of repeated uses of Korematsu in federal circuit
 court opinions is, more or less, Korematsu = race, matched with Korematsu = national
 origin (or ancestry, parentage, lineage, descent, etc.). Because, basically, one is wrong,
 and the other is right. Legally speaking, Korematsu fundamentally was never about just
 race, or indeed race at all. As we understand matters today, the Japanese are not a
 separate “race”. Nor was the Japanese American internment also targeted at fellow
 members of the same “race”, such as Chinese Americans or Filipino Americans. Legally
 speaking, Japanese Americans were singled out because of their national origin and/or
 ancestry, for the same reason that German and Italian nationals of a different “race”
 from along the Pacific Coast were also interned (although their native-born children
 mostly were not, which was a key difference with respect to Japanese Americans).194 The
 internment, rather obviously, targeted nationalities with which the United States was at
 war—meaning, in turn, that by definition, the internment was not undertaken solely on
 the basis of national origin or ancestry; it was undertaken based upon that combined
 with the enemy status of the nations/nationalities in question.                                The official dual
 citizenship of a significant number of Japanese Americans, as well as the eagerness with
 which the Japanese government sought to promote such dual citizenship among
 Japanese-derived immigrant communities in other nations, including American-born
 Japanese American United States citizens, caused additional confusion and suspicion and
 provided some added reasons for including native-born Japanese American citizens

192
    See e.g., Hunter ex rel. Brandt v. Regents of University of California, 190 F.3d 1061, 1075 (9th Cir. 1999) (Beezer,
    J., dissenting).
193
    See United States v. Melendez-Carrion, 790 F.2d 984, 1013 n.5 (2d Cir. 1986) (Timbers, J., dissenting); see also
    Bay Area Peace Navy v. United States, 914 F.2d 1224, 1237 (9th Cir. 1990) (O’Scannlain, J., dissenting).
194
    However, significant numbers of German American and Italian American citizens were also interned along
    with non-citizen enemy nationals. See Alan Rosenfeld, German and Italian Detainees, Densho Encyclopedia,
    http://encyclopedia.densho.org/German_and_Italian_detainees (last visited Dec. 21, 2020). Rosenfeld
    notes that of the roughly 11,500 German Americans and 3,000 Italian Americans interned during the war,
    many were U.S. citizens.


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 along with Japanese citizens in the internment—even if those reasons proved to be
 mostly wrong.
           The confusion concerning Korematsu as being a case about “race” arises from
 what was effectively an already antiquated use of the term “race” in the Korematsu
 opinions, dating back to the late 1800s (or earlier), when every different nation was
 described as a separate “race”. This is all discussed at greater length elsewhere.195
 Suffice it to say that to describe Korematsu simplistically as giving a rule about “race” is
 simply and fundamentally wrong; to say it concerned national origin and ancestry—as
 was usually recognized correctly about its companion case, Hirabayashi—is quite correct.
 Federal judges should perhaps have received a clear if tacit signal of that lesson from U.S.
 Supreme Court Justice Harry Blackmun’s opinion in Graham v. Richardson,196 where,
 following some years of confused lumping of Korematsu together with race in Supreme
 Court jurisprudence based upon the earlier linguistic misunderstanding, Blackmun first
 subtly indicated that both Korematsu and Hirabayashi were actually about national origins
 and ancestry, not race.197 As the following discussion reveals, many judges apparently
 never got that message.
           From 1966, when the Fifth Circuit reintroduced Korematsu into federal circuit
 court jurisprudence after a long hiatus, through 2014, circuit courts repeated the basic
 statement that Korematsu = race as a suspect classification or target of strict scrutiny (or
 closely related statements such as, Korematsu and Hirabayashi = race, Korematsu and Loving
 v. Virginia = race, Korematsu and McLaughlin v. Florida = race, etc.) thirty times, making
 that legal equation the single most common use of Korematsu in its precedential life
 cycle. It appeared twice in 1968, once in 1970, four times in 1971 (at least two of those
 long after the opinion in Graham v. Richardson came out in June 1971), five times in 1972,
 twice in 1975 and once in every other year from 1973-1980, followed by later
 appearances in 1986, 1990, 1998, 2001, 2007, 2011, and twice in 2014.
           Between 1972 (probably non-coincidentally just a year after Graham v. Richardson)
 and 1996, fifteen circuit opinions recognized that Korematsu = national origins (or ancestry,
 parentage, “corruption by blood”, etc.). Seven of these appeared from 1972-1980 (one in
 each year except 1975 and 1978), with two additional uses emerging in both 1987 and 1989,
 single uses in 1985, 1990, 1995, and 1996).




195
    See generally Dewey, supra note 10.
196
    403 U.S. 365, 371 nn. 21 & 22 (1971). For more on this particular matter, see Dewey, supra note 10, at 123-27.
197
    See Dewey, supra note 10, at 126-27.


                                                       335
                                              THE BANALITY OF EVIL ?


 Comparing these two uses, it is perhaps notable that the wrong use appeared twice as
 frequently as the right one; the wrong one remained stronger and more popular than the
 right one even after Graham v. Richardson; and the right one vanishes from the record after
 1996, while the wrong one continued making appearances from 1998-2014.
              Circuits seemingly varied in terms of their ability to get the message of Graham v.
 Richardson or, indeed, to actually read and understand Korematsu rather than merely
 absorbing brief, passing (mis)statements taken out of context and inserted into many
 other legal opinions. The First Circuit, never a major user of Korematsu, cited it once for
 Korematsu = race in 2007 (and got it wrong). The Second Circuit got it wrong four times,
 all after Graham (1972, 1973, 1976, 2014), and never got it right once. The Third Circuit,
 out of two uses, got it right once (1976) and wrong once (1978—after the correct use).
 The Fourth Circuit got it wrong four times in the 1970s (twice in 1971, once in 1972 and
 1975) and right once in 1996. The Fifth Circuit, as usual an active user, got it wrong seven
 times, mostly in the 1960s-70s (1966, twice in 1968, 1972, 1974, 1977, 2011), right once in
 1980. The Sixth Circuit got the matter right once in 1990. The Seventh Circuit got it
 wrong three times (1972, 1979, 1986). The Eighth Circuit got it wrong twice (1971, 1980)
 and right twice (1974, 1987—both correct uses came from Judge Lay; both incorrect ones
 came from different judges). The Ninth Circuit got it wrong five times (1970, 1971, 1975,
 2001, 2014), right once in 1995 (by a district judge sitting pro tem). The Tenth Circuit got
 it right twice (1985, 1989). The D.C. Circuit got it wrong three times (1972, 1990, 1998) but
 right five times (1972, 1973, 1977, 1979, 1987)—though many of the right uses came
 earlier while wrong ones came later. The Federal Circuit got the definition right once
 (1989). The Eleventh Circuit didn’t participate in this particular game. Interestingly, and
 perhaps ironically, aside from the First Circuit, those circuits that made relatively little
 use of Korematsu appear to have gotten this particular issue “right” more often than most
 heavier users.198
              Relatively few judges had the distinction of having to make this particular
 distinction more than once. Of those, only Judge Lay of the Eighth Circuit got it right
 twice (1974, 1987). Judge Cudahy of the Seventh Circuit got it wrong twice (1972, 1986).
 Judges Wisdom (1966, 1968) and Tuttle (1968, 1977) both got it wrong twice, in the Fifth
 Circuit where the use of Korematsu for considering civil rights claims took root earliest


198
      Given courts’ propensity to (sometimes unreflectively) recycle their own language as well as to rotely borrow
      language from higher courts, more “garbage in the system” typically means more such garbage resurfacing
      later, sometimes notwithstanding earlier efforts to clean it out; while jurisdictions that mostly never took
      in a particular sort of “garbage” in the first place do noticeably better at keeping free from it. See Dewey, The
      Case of the Missing Holding, supra note 16, at 216-218 (discussing the 6th Circuit’s singular success at avoiding
      importation of an unfounded, ill-conceived legal doctrine).


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 and most deeply, following earlier misleading statements about Korematsu and race from
 Supreme Court opinions predating Graham.
              In discussing courts and judges getting it “right” or “wrong”, in a manner that
 might seem improperly dismissive, it is worth emphasizing that of course the judges and
 clerks who produced all these opinions generally were both, very bright and
 conscientious, as well as very busy, and likely were preoccupied with various other, more
 salient aspects of the often complex cases they were considering. So the purpose of this
 particular exercise is not so much to smugly play “Gotcha!” as to point out how, for all
 the best efforts of court professionals, the “garbage in the system”—the linguistic
 misunderstanding and misreading of the holding of Korematsu, compounded by
 repetition, simplification, and abstraction out of context—was significantly more
 stubborn and persistent than a more correct reading (rather like misinformation on the
 Internet?).199
              The forty-five “right” or “wrong” uses of Korematsu described above already
 represent 38.3% of the 115 opinions using Korematsu in one way or another (with
 two-thirds of the forty-five, and more than a quarter of the 115, “wrong”). Other uses
 included twelve invocations of Korematsu regarding suspect classifications in general
 (1970-2000); seven others regarding strict scrutiny (1982 and 1990-2014, suggesting that
 the judicial recognition and use of “strict scrutiny” as a generic legal term of art may
 have come a little later than “suspect classifications”); seven invocations of Korematsu
 regarding national/wartime emergencies or pressing public necessity (1967, 1971, 1973,
 two in 1996, 2010, 2015; interestingly, none in this category from the 1940s); six citations
 supporting federal war powers, general powers, and the validity of the internment
 program, all but one from the 1940s; two opinions much later, both from the D.C. Circuit,
 drawing upon Justice Jackson’s “loaded gun” dissent to use Korematsu as a basis of
 support for appropriate suspicion of federal power (2012, 2016); among various others.



199
      The list in the wrong column includes some additional examples, such as Judge Robinson’s 1990 opinion (in
      the Jamaican drug dealers case) that lumps race together with national origin/ancestry indiscriminately
      (United States v. Doe, 903 F.2d 16, 21-22 (D.C. Cir. 1990)), and a similarly unhelpful 1975 opinion by Judge
      Oakes similarly lumping Korematsu and Hirabayashi together to collapse any meaningful distinction between
      race and ethnic origin (United Jewish Organizations of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 528
      (2d Cir. 1975)). Although a statement may be correct that in a particular case or situation, a distinction
      between race and national or ethnic origin may be meaningless, a general, sweeping statement to the effect
      that any distinction between race and national or ethnic origin always is and must be meaningless, may be
      patently incorrect, both legally and logically. Regarding persistent misinformation, both on the Internet and
      generally, see, e.g., John Cook, Ullrich Ecker & Stephan Lewandowsky, Misinformation and How to Correct It, in
      Emerging Trends in the Social and Behavioral Sciences (Robert Scott & Stephan Kosslyn eds., 2015), available
      at https://www.researchgate.net/profile/Ullrich_Ecker/publication/277816966_Misinformation_and_its
      _Correction/links/5575066108ae7536374ff554/Misinformation-and-its-Correction.pdf.


                                                          337
                                        THE BANALITY OF EVIL ?


 A perhaps sort of interesting before-and-after comparison may be found by comparing
 a Ninth Circuit opinion from 1950, holding that courts inherently cannot judge military
 necessity,200 with later opinions holding that, for instance, courts necessarily make major
 political decisions,201 or that the Supreme Court frequently decides foreign policy and
 national security questions.202
           After the (mis)statement using Korematsu as a stand-in for race regarding strict
 scrutiny, though, by far the most substantial category of use of Korematsu came in the
 post-1980 flurry of hand-wringing over the (finally and belatedly) discredited Japanese
 American internment. There were twenty-four such uses from 1986-2015, with one in
 the First Circuit (2014), three in the Second (1986, 1995, 2002), three in the Third (1990,
 2002, 2015, the first two both by Judge Wiener), one in the Fourth (2003), three in the Fifth
 (1992, 2000, 2001), four in the Sixth (1990, 1992, 1994, 1996, all from Judge Jones), one in
 the Seventh (2008), two in the Eighth (both by Judge Lay) (1987, 2008), three in the Ninth
 (1990, 1997, 1999), one in the Tenth (2004), and two in the D.C. Circuit (1992, 1994). In four
 cases, such hand-wringing generated calls from other (usually more conservative) panel
 members to knock off the hand-wringing, at least in the case at hand: two in the Second
 Circuit (1986 and 1995), one in the Fourth (2003), and one in the Ninth (1990). Nineteen of
 the hand-wringings appeared in alternate opinions, mostly dissents (fifteen dissents, one
 concurrence/dissent); the calling-out of the hand-wringing also involved two dissents and
 one concurrence.



      3.4. KOREMATSU: JUDGES/OPINION WRITERS

 Out of a total of ninety-one judges who wrote individual opinions citing Korematsu—as
 usual, leaving out the reparations/exoneration cases of the 1980s, plus another two per
 curiam opinions and a Joint Statement questioning denial of a rehearing—only sixteen
 judges cited Korematsu in more than one opinion, often spaced far enough in time to raise
 doubts about any pattern, and only three of those sixteen judges used Korematsu more
 than twice: Judge Denman, Ninth Circuit, three times (1947, 1949, 1950); Judge Jones,
 Sixth Circuit, four times (1990, 1992, 1994, 1996); and Judge Lay, Eighth Circuit, four times
 (1974, 1981, 1987, 1991). The latter three judges do all tend to show some pattern, and in
 the cases of Judges Jones and Lay, that appears to go with a heightened overall sensitivity
 regarding civil rights. Based upon the nature and/or timing of their respective opinions,

200
    See Bridges v. United States, 184 F.2d 881, 887, quoting Korematsu at 245 (Jackson, diss.).
201
    See Northern Kentucky Right to Life Committee, Inc.v. Kentucky Registry of Election Finance, 134 F.3d 371
    (6th Cir. 1998) (Ryan, J., conc./diss.).
202
    See El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010).


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 the same might be true for some of the “two-timers”: Judge Feinberg, Second Circuit
 (1970, 1972); Judge Fletcher, Ninth Circuit (1990, 1997); Judge Gibbons, Third Circuit
 (1976, 1981); Judge Robinson, D.C. Circuit (1988, 1990); Judge Wiener, Fifth Circuit (1992,
 2000); Judge Winter, Fourth Circuit (1970, 1971), and Judge Wisdom, Fifth Circuit (1966,
 1968). It is possible that Judge Tuttle, Fifth Circuit (1968, 1977) and Judge Cudahy,
 Seventh Circuit (1986, 1994) also should appear on this latter list.203 Other judges who
 used Korematsu mostly for not especially pro-civil rights purposes include: Judge Coffin,
 First Circuit (1970, 1976); Judge Roney, Fifth/Eleventh Circuit (1977, 1996); Judge
 Silberman, D.C. Circuit (1987, 1998); Judge Wilkinson, Fourth Circuit (1996, 2003). Perhaps
 notably, given the relative popularity of Hirabayashi with certain conservative judges in
 the post-1980 period, Korematsu appears never to have gained quite the same currency
 for enforcing color-blindness and defeating affirmative action. For instance, Judge Jerry
 Smith of the Fifth Circuit and Judge O’Scannlain of the Ninth Circuit, who respectively
 used Hirabayashi twice and four times for such purposes, each used Korematsu only once.




203
      Notably, Judge Tuttle, who might not have especially stood out in this particular list based upon only two
      widely spaced citations of Korematsu, was of course a known and relatively early friend of civil rights. See
      Bass, The “Fifth Circuit Four”, supra note 63. Judge Wisdom also used Korematsu twice (but only twice), situated
      more closely in time; the other two members of “The Four”, Judges Brown and Rives, apparently did not feel
      the need to cite it more than once.


                                                           339
                                              THE BANALITY OF EVIL ?


      3.5. KOREMATSU: QUOTES

 Thirty-two of the 115 opinions in 111 cases citing Korematsu (not counting the three
 reparations/exoneration cases of the 1980s and an early 1944 case citing only the earlier
 Ninth Circuit opinion) included or claimed to include quotes from Korematsu. Ten of
 these barely count as quotes, having only one to three words (seven of “most rigid
 scrutiny”;204 one “constitutionally suspect”;205 one “suspect”;206 one “pressing public
 necessity”207 ), although at least a few of these include additional paraphrasing
 ultimately derived from Korematsu. Another supposed quote is a quotation of Hirabayashi
 (“odious to a free people”) misattributed to Korematsu.208 Still another quotation, from
 Justice Murphy’s dissent, is memorable if brief: “the ugly abyss of racism”.209
            Of the remaining twenty-three separate quotes in twenty-one other opinions,
 three are repetitions of the Supreme Court’s strict scrutiny “mantra” in McLaughlin.210
 One of the more popular quotations was the “loaded gun” quotation warning against
 executive or legislative over-reaching from Justice Jackson’s dissent, abbreviated to
 varying degrees (used four times): “The principle then lies about like a loaded weapon
 ready for the hand of any authority that can bring forward a plausible claim of an urgent
 need”.211 Other quotations from Jackson included: “The Court is now saying that in
 Hirabayashi we did decide the very things we there said we were not deciding”;212 “[We]
 can apply only law, and must abide by the Constitution, or [we] cease to be civil courts
 and become instruments of [police] policy”;213 “So the Court, having no real evidence
 before it, has no choice but to accept General DeWitt’s own unsworn, self-serving
 statement, untested by any cross-examination”.214                           The list also includes a frankly
 problematic quote from Jackson’s dissent in which Jackson admits that “military

204
    See, e.g., Kills Crow v. United States, 451 F.2d 323, 325 (8th Cir. 1971); Chance v. Board of Examiners, 458 F.2d
    1167, 1177 (2d Cir. 1972); United States v. Antelope, 523 F.2d 400, 403 (9th Cir. 1975); Hall v. Pennsylvania
    State Police, 570 F.2d 86 (3d Cir. 1978); Sylvia Development Corp. v. Calvert County, Md., 48 F.3d 810, 820 (4th
    Cir. 1995).
205
    United States v. Thoresen, 428 F.2d 654, 658 (9th Cir. 1970).
206
    United States v. Doe, 903 F.2d 16, 22 (D.C. Cir. 1990) (again, the Jamaican drug smugglers case).
207
    Toles v. Katzenbach, 385 F.2d 107, 110 (9th Cir. 1967) (Browning, J., dissenting).
208
    See United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 871 (citing only Korematsu at 216, meaning
    to also cite Hirabayashi at 100).
209
    Maldonado v. Holder, 763 F.3d 155, 174 (2d Cir. 2014) (Lynch, J., dissenting).
210
    See supra note 155.
211
    See, e.g., United States v. Brainer, 691 F.2d 691, 700 (4th Cir. 1982) (quoting Korematsu at 246 (Jackson, J., diss.));
    Washington Post Co. v. U.S. Dept. of State, 840 F.2d 26, 35 n.66 (D.C. Cir. 1988); United States v. Burwell, 690
    F.3d 500, 533 n.6 (D.C. Cir. 2012) (providing the entire Jackson “loaded weapon” quote).
212
    Hamdi v. Rumsfeld, 337 F.3d 335, 373 (4th Cir. 2003) (Motz, J., dissenting) (quoting Korematsu at 247 (Jackson,
    J., dissenting)).
213
    Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015) (quoting Korematsu at 247 (Jackson, J., diss.)).
214
    Hamdi v. Rumsfeld, 337 F.3d 335, 376 (4th Cir. 2003) (Motz, J., diss.) (quoting Korematsu at 245 (Jackson, J.,
    diss.)).


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 decisions are not susceptible of intelligent judicial appraisal” but that “a civil court
 cannot be made to enforce an order which violates constitutional limitations even if it is
 a reasonable exercise of military authority”.215
            Justice Murphy’s stinging, resounding dissent also appeared more than once, and
 more than briefly.           “[T]o infer that examples of individual disloyalty prove group
 disloyalty and justify discriminatory action against the entire group is to deny that
 under our system of law individual guilt is the sole basis for deprivation of rights” (used
 twice);216 “[i]ndividuals must not be left impoverished of their constitutional rights on a
 plea of military necessity that has neither substance nor support [and to do otherwise




215
    The entire quote, used in Bridges v. United States, 184 F.2d 881, 887 (9th Cir. 1950), concerning the McCarthy-
    era prosecution of well-known Australian-born American radical labor leader Harry Bridges for subversive
    activities and for lying under oath about his Communist sympathies and affiliations, reads as follows:
                  In the very nature of things, military decisions are not susceptible of intelligent
                  judicial appraisal. They do not pretend to rest on evidence, but are made on
                  information that often would not be admissible and on assumptions that could not
                  be proved. * * * I should hold that a civil court cannot be made to enforce an
                  order which violates constitutional limitations even if it is a reasonable exercise of
                  military authority. The courts can exercise only the judicial power, can apply only
                  law, and must abide by the Constitution, or they cease to be civil courts and become
                  instruments of military policy.
    In these statements, Jackson appears to acknowledge, at least tacitly, that military decisions sometimes
    must be made, as well as more overtly recognizing that judges cannot intelligently evaluate them.
    Jackson then contends that courts cannot be forced to provide constitutional stamps of approval to
    unconstitutional military actions—even if those military exercises of authority are, in fact, reasonable under
    the circumstances (and, implicitly, will be undertaken as such in the face of a national crisis). Jackson, here,
    thus appears to come uncomfortably close, at least for legal and constitutional theorists, to acknowledging
    the essential powerlessness of the law and the Constitution in the face of military crises or other national
    emergencies. Although this interesting and ironic feature of Jackson’s Korematsu dissent has not perhaps
    drawn as much attention as it probably deserves—possibly because, as with so much other legal language,
    readers cherry-pick the language they like and pull it out of context without a second thought—it did not
    escape the notice of legal scholar Eugene V. Rostow, who was more of a radical in the 1940s than in his
    later years and who clearly read the entire Korematsu opinion, including all the dissents, in great detail.
    Rostow, in a memorably scathing article blasting the Supreme Court for upholding military, legislative,
    and executive actions associated with the Japanese American internment in Korematsu, lavishly praised
    Justice Murphy’s dissent but somewhat lengthily skewered Jackson’s dissent as fundamentally absurd and
    a “fascinating and fantastic essay in nihilism”. Eugene V. Rostow, The Japanese American Cases - A Disaster, 54
    YALE L.J. 489, 510-12 (1945). For a brief discussion of the very interesting life of Harry Bridges, see, e.g., Harry
    Bridges: Life and Legacy, Waterfront Workers History Project, University of Washington Civil Rights and Labor
    History Consortium, http://depts.washington.edu/dock/Harry_Bridges_intro.shtml (accessed Dec. 22,
    2020). Regarding Eugene Victor Rostow, named by his parents after American socialist leader Eugene Victor
    Debs, and who served in the Roosevelt, Kennedy, and Johnson administrations before, in effect, converting
    to neoconservatism in his later years and working for the Reagan administration as a director of the Arms
    Control and Disarmament Agency who was vocally opposed to either nuclear arms control or disarmament,
    see, e.g., Eugene V. Rostow, Wikipedia, https://en.wikipedia.org/wiki/Eugene_V._Rostow (accessed Dec. 22,
    2020). The former liberal/radical is remembered as a “Contributor” by the Federalist Society. Prof. Eugene V.
    Rostow, Former Dean, Yale Law School, The Federalist Society, https://fedsoc.org/contributors/eugene-rostow
    (accessed Dec. 22, 2020).
216
    See e.g., Hunt v. Roth, 648 F.2d 1148, 1165 (8th Cir. 1981) (quoting Korematsu at 240 (Murphy, J., diss.)); Hassan
    v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015) (quoting Korematsu at 240 (Murphy, J., diss.)).


                                                          341
                                            THE BANALITY OF EVIL ?


 would] encourage and open the door to discriminatory actions against other minority
 groups in the passions of tomorrow”.217
            Quotations from the Korematsu majority opinion include: “[n]othing short of
 apprehension by the proper military authorities of the gravest imminent danger to the
 public safety can constitutionally justify [this sort of discriminatory deprivation]”(used
 twice);218 “[the Court upheld the order only because it] could not reject the finding of the
 military authorities that it was impossible to bring about an immediate segregation of
 the disloyal from the loyal”;219 “[the Japanese plaintiff was] not excluded from the
 military area because of hostility to him or his race”;220 “[P]ressing public necessity may
 sometimes justify the existence of [racial discrimination]; racial antagonism never
 can”;221 “[A]ll legal restrictions which curtail the civil rights of a single racial group are
 immediately suspect, [and] courts must subject them to the most rigid scrutiny”;222
 “there were disloyal members of [the Japanese-American] population, whose number
 and strength could not be readily ascertained ... such persons ... constituted a menace to
 the national defense and security, which demanded that prompt and adequate measures
 be taken against it”;223 and a very lengthy quotation likely used for local self-justification



217
    United States v. Taylor, 956 F.2d 572, 592 (6th Cir. 1992) (Jones, J., dissenting) (quoting Korematsu at 234,
    240 (Murphy, J., diss.)). Judge Jones, however, notably also included a rather major concession in Justice
    Murphy’s dissent, somewhat similar to the conundrum raised in the problematic quote from Justice Jackson:
    [That the] “scope of [. . .]discretion [of those waging the war] must, as a matter of necessity and common
    sense, be wide” (quoting Korematsu at 234 (Murphy, J., diss.)). The complete quotation from the Murphy
    dissent—the second paragraph of that dissent—actually tracks the problematic Jackson quote even more
    closely:
                In dealing with matters relating to the prosecution and progress of a war, we must
                accord great respect and consideration to the judgments of the military authorities
                who are on the scene and who have full knowledge of the military facts. The scope
                of their discretion must, as a matter of necessity and common sense, be wide. And
                their judgments ought not to be overruled lightly by those whose training and duties
                ill-equip them to deal intelligently with matters so vital to the physical security of
                the nation.
    Korematsu at 234 (Murphy, J., diss.).
218
    Culver v. Secretary of Air Force, 559 F.2d 622, 636 (D.C. Cir. 1977) (Bazelon, J., diss.) (quoting Korematsu at
    218); Narenji v. Civiletti, 617 F.2d 745, 754 (D.C. Cir. 1979) (joint statement dissenting against decision not to
    rehear case en banc) (the Iranian students case).
219
    Culver v. Secretary of Air Force, 559 F.2d 622, 636 (D.C. Cir. 1977) (Bazelon, J., diss.) (quoting Korematsu at
    219).
220
    Doe on Behalf of Doe v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411, 418 (7th Cir. 1986).
221
    Fisher v. University of Texas at Austin, 631 F.3d 213, 248 (5th Cir. 2011) (Garza, J., conc.).
222
    Bulluck v. Washington, 468 F.2d 1096, 1116 (D.C. Cir. 1972) (quoting Korematsu at 216).
223
    United States v. Smith, 73 F.3d 1414, 1422 (6th Cir. 1996) (Jones, J., conc.) (quoting Korematsu at 218).
    This quote, used by the liberal, pro-civil rights Judge Nathaniel R. Jones, at first glance may disturb civil
    libertarians, but here it is taken out of context; Jones used the quote only as part of a wider explanation and
    warning about how the Supreme Court got things terribly wrong in Korematsu. Ironically, of course, given
    the nature of selective cherry-picking of language out of context in the legal profession, this quote could
    be used in support of the specific point it makes—and it could be made to appear that Judge Jones used it
    approvingly.


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 in a 1947 Ninth Circuit opinion concerning an exclusion order applied to a non-Japanese
 American.224
            Finally, another quotation from Justice Roberts’ dissent that nevertheless, taken
 out of context, tended to support government authority, was used: “The liberty of every
 American citizen freely to come and to go must frequently, in the face of sudden danger,
 be temporarily limited or suspended”.225
            After two early quotations in 1947 and 1950, both from the Ninth Circuit, Korematsu
 was not allegedly quoted again until the misattributed quotation from Hirabayashi in 1966,
 then the brief “pressing public necessity” quote in 1967. The McLaughlin mantra appeared
 twice from the Fifth Circuit in 1968, followed by a third appearance from the Fourth Circuit
 in 1971. Of the fourteen quotations appearing between 1968 and the end of the 1970s, along
 with the three recitations of the mantra, there were seven of the very brief quotes (six of
 “most rigid scrutiny”, one “constitutionally suspect”), along with both uses of “[n]othing
 short of apprehension [. . .]”; “[A]ll legal restrictions which curtail the civil rights of a
 single racial group are immediately suspect, [and] courts must subject them to the most
 rigid scrutiny”; and the out-of-context quote from the Roberts dissent.
            Quotation patterns changed abruptly starting in the early 1980s as Korematsu,
 Hirabayashi, and the whole Japanese American internment increasingly were called into
 doubt. Notably, the fourteen opinions after 1980 that quoted Korematsu one or more
 times included all but one of the quotations of Jackson’s dissent and all those of
 Murphy’s dissent.
            Who did the quoting? The First, Tenth, Eleventh, and Federal Circuits appear
 never to have quoted Korematsu even once. The Second offered only three very brief
 quotes, two in 1972, the other in 2014. The Third quoted from Korematsu twice, once
 briefly in 1978, later at length from both Jackson’s and Murphy’s dissents in 2015. The
 Sixth quoted Korematsu twice, in 1992 and 1996, both in dissents or concurrences by
 Judge Nathaniel R. Jones.



224
    See e.g., DeWitt v. Wilcox, 161 F.2d 785, 787-788, 790-791 (9th Cir. 1947):
                 Some of the members of the Court are of the view that evacuation and detention in
                 an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order
                 No. 34, Korematsu was under compulsion to leave the area not as he would choose
                 but via an Assembly Center. The Assembly Center was conceived as a part of the
                 machinery for group evacuation. The power to exclude includes the power to do it by
                 force if necessary. And any forcible measure must necessarily entail some degree of
                 detention or restraint whatever method of removal is selected. But whichever view
                 is taken, it results in holding that the order under which petitioner was convicted
                 was valid.
225
    United States v. Chalk, 441 F.2d 1277, 1283 (4th Cir. 1971) (quoting Korematsu at 231 (Roberts, J., diss.)).


                                                        343
                                              THE BANALITY OF EVIL ?


 The Seventh quoted Korematsu only once, in 1986; the Eighth quoted Korematsu twice, once
 in 1971 with the very brief “most rigid scrutiny”, the other time in 1981, the first circuit
 to quote Korematsu in the 1980s and using a critical quotation from Murphy’s dissent.226
              Thus, the other twenty-two of thirty-two quotations all came from just the
 Fourth, Fifth, Ninth, and D.C. Circuits, four from the Fifth, five apiece from the Fourth
 and Ninth, and seven from the D.C. Circuit. The Fourth Circuit’s two quotations from
 1971 included the McLaughlin mantra and the uncritical-looking Roberts quote; two of
 the three between 1982 and 2003 were critical Jackson quotes. Leaving aside the 1966
 misquote of Hirabayashi, the Fifth recited the McLaughlin mantra twice in 1968, then
 much later, in 2011, used the more resounding, “[P]ressing public necessity may
 sometimes justify the existence of [racial discrimination]; racial antagonism never can”.
              The Ninth Circuit quoted Korematsu in 1947, 1950, 1967, 1972, and 1975. 1947 saw
 use of the lengthiest quote in support of government authority; 1950, the slightly
 perplexing Jackson quotation to the effect that a court should not rubber-stamp military
 decisions as constitutional, but also cannot stop them. The remaining three quotations
 were extremely brief, and the Ninth Circuit never quoted Korematsu again.
              The D.C. Circuit’s three quotations of Korematsu from before 1980 include “[A]ll
 legal restrictions which curtail the civil rights of a single racial group are immediately
 suspect, [and] courts must subject them to the most rigid scrutiny” in 1972, and the two
 uses of “[n]othing short of apprehension …” in 1977 and 1979. By contrast, of the four
 quotations of Korematsu to appear after 1980 in the D.C. Circuit three were different
 versions of the Jackson “loaded gun” quote (1988, 2012, and 2016), plus the diminutive,
 one-word “suspect” (1990).
              Other than Second Circuit Judge Feinberg, with two uses of “most rigid scrutiny”
 in 1972, and Sixth Circuit Judge Jones, with two lengthy quotations in 1992 and 1996, and
 excluding the 1966 misquote of Hirabayashi from the Fifth Circuit and the single-word
 quote from the D.C. Circuit in 1990, no other judges quoted Korematsu even twice.




226
      See Hunt v. Roth, 648 F.2d 1148, 1165 (8th Cir. 1981) (quoting Korematsu at 240 (Murphy, J., diss.))


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      3.6. KOREMATSU: USE IN CONCURRENCES OR DISSENTS

 Out of the 115 total opinions in 111 Korematsu-citing cases, forty-one opinions (35.7%)
 were either concurrences or dissents, the overwhelming majority—thirty-six—of those
 being dissents, plus five concurrences and two partial concurrences/dissents. Only ten of
 these alternate opinions appeared between 1950 and the end of 1980 (nine dissents, one
 concurrence); the other thirty-one, more than 75% of the total, came from 1981 onward,
 all but one from 1985 onward.                After somewhat uneven appearances during the
 1980s—one in 1985, three in 1986, one in 1987, none in 1988 or 1989, then a cluster of four
 in 1990—these alternate opinions appeared at an average rate of about one per year from
 1991 through 2002, with slight variations (none in 1993, two in 1994, and two in 2000).
 After another small surge of three opinions in 2003—two of them being a concurrence
 and a dissent challenging each other in the same case227 —the engine sputtered
 somewhat, with only six more such alternate opinions appearing between 2004 and 2016
 (and clustered somewhat toward the end of that period).228
           Generally, in most circuits, such concurrences or dissents were relatively few in
 number and/or widely scattered in time, showing few repeat performers and seemingly
 no particular patterns.229 The partial exceptions are the Third Circuit, with five alternate
 opinions from 1976-2002 and two of those both dissents by Judge Gibbons (1976, 1981);
 the Sixth Circuit, in which all four concurrences and dissents, 1990-1996, came from
 Judge Jones; the Eighth Circuit, in which both alternate opinions, a dissent and a
 concurrence/dissent, were by Judge Lay (1987, 1991); and the Ninth Circuit, with seven
 alternate opinions, 1950, 1967, and 1990-2003, with the five dissents from 1990 onward
 showing a pronounced pattern of more liberal judges challenging more conservative
 majorities or more conservative judges challenging more liberal majorities, and with two
 of the more liberal dissents coming from Judge Fletcher.




227
    See Hamdi v. Rumsfeld, 337 F.3d 335, 344 (4th Cir. 2003) (Wilkinson, J., conc.; Motz, J., diss.).
228
    These last six alternate opinions appeared in 2004, 2008, 2011, 2016, and two in 2014.
229
    [First: 2x 1986, 2014; Second : 5x, 1972, 1986, 1995, 2000 2014; Fourth: two cases with three opinions, two
    of them answering each other in 2003: 1971, 2003, 2003; Fifth: 3x 2000, 2001, 2011; Seventh 2x 1973 2008;
    Tenth: 2x 1985, 2004; D.C.: 5x, 1977, 1979, 1986, 1994, 2016; Eleventh & Fed: 0].


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                                           THE BANALITY OF EVIL ?


      3.7.       KOREMATSU: USE OF CONCURRENCES OR DISSENTS FROM
      KOREMATSU ITSELF

 Fifteen of the 115 opinions not including the reparations cases drew upon the
 concurrences or dissents in Korematsu. Only three of these appeared before 1981 and
 included the only citation of Justice Frankfurter’s concurrence, supporting federal war
 powers authority, in any federal circuit opinion (1969),230 along with the two quotations
 from the Jackson and Roberts dissents that, taken out of context, appeared to support
 government authority.231 From 1981 onward, the other twelve opinions drew only from
 the more critical language of the sharper dissenting opinions, with four uses of Murphy
 and nine of Jackson (and one opinion using both of them at some length232 ). Opinions
 using the Korematsu dissents also represented twelve of the thirty-two quotations of
 Korematsu.



      3.8. KOREMATSU: DEPTH OF USE

 The depth of use of Korematsu in circuit court opinions was ranked by eleven (or twelve)
 different categories:          Passing Reference [hereinafter P.R.], in which an opinion
 mentioned Korematsu only briefly in passing for some relatively normal citation purpose;
 P.R.*, in which an opinion mentioned Korematsu briefly in passing to criticize it or raise a
 warning based upon it; Passing References including very brief Quotes (i.e., “most rigid
 scrutiny”) [hereinafter P.R.(Q.)]; P.R.**, in which an opinion, in passing, chided a P.R.*
 opinion in the same case or otherwise questioned the propriety of raising Korematsu at all
 in the context of the case; Passing References including slightly more substantial Quotes
 than with P.R.(Q.)s [hereinafter P.R.Q.]; Quote [hereinafter Q.], indicating a more
 normal-length quote from Korematsu; Substantial, referring to uses of Korematsu at some
 length and depth, though without quotes; Substantial*, like P.R.* indicating the
 invocation of Korematsu to criticize it or warn against it, only more substantial;
 Substantial Q., including a lengthier quote from Korematsu; Substantial+ Q., including
 both substantial discussion and substantial quote/s; Full Mantra, reciting (nearly
 verbatim) the language from the Supreme Court’s McLaughlin v. Florida statement of the
 strict scrutiny standard, which represents in effect a somewhat more stylized but



230
    See Simmons v. United States, 406 F.2d 456 (5th Cir. 1969) (a Vietnam War draft resistance case).
231
    See Bridges v. United States, 184 F.2d 881, 887 (9th Cir. 1950) (quoting Korematsu at 245 (Jackson, J., diss.));
    United States v. Chalk, 441 F.2d 1277, 1283 (4th Cir. 1971) (quoting Korematsu at 231 (Roberts, J., diss.)).
232
    See Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015).


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 distinctive version of the P.R.(Q.); and, finally, P.R.(Q.)-Mistake, for the misattribution of
 the quote from Hirabayashi.233
               The tally of these uses is as follows (and includes how frequently such uses
 involved co-citations of certain other key cases involving civil rights and/or the Japanese
 American experience):

         • P.R. = fifty-three [includes twenty-six uses of other cases]

         • P.R.* = twenty-four [includes six uses of other cases, including 4x Plessy and 2x Dred
            Scott]

         • P.R.(Q.) = ten [includes eight uses of other cases]

         • P.R.** = five [one use of another case, Plessy]

         • P.R.Q. = two [no other cases co-cited]

         • Q. = nine [includes four uses of other cases]

         • Substl = two [includes two uses of other cases]

         • Substl* = two [includes one use of other cases]

         • Substl Q = three [includes two uses of other cases]

         • Substl+ Q = four [includes two uses of other cases]

         • Full Mantra = three [includes three uses of other cases]

         • P.R.(Q.)-Mistake = one [includes one use of other cases]
233
      This “depth of use” analysis is borrowed from a pair of studies of all the citations of works by Michel Foucault
      over a twenty-five year period in the journal literature produced by library/information science scholars.
      It represents an effort to overcome what has been a basic flaw of citation analysis ever since the beginning
      of computer-assisted citation-counting efforts in the 1960s for academic articles—the inability to go beyond
      raw numbers to check the character, quality, and depth of use of the citation through what bibliometricians
      refer to as “tiered analysis”. See, e.g., Blaise Cronin, Tiered Citation and Measures of Document Similarity, 45
      J. AM. SOC’Y INFO. SCI. 537 (1994). [Of course, Westlaw’s Depth scale for court opinions already helps
      with comparative depth analysis, along with other similar systems from other legal information providers.
      Westlaw’s, and Lexis-Nexis/Shepard’s systems for tracking positive or negative treatment of court opinions
      in later citing opinions also generally do a good job of revealing citation “valencE”—positive or negative—
      that traditionally has been lacking from academic citation analysis systems such as the first and best-known,
      Web of Science]. Such an approach admittedly may produce more useful and interesting results with larger
      data sets, such as the hundreds of articles citing Foucault, than the more limited data set here. See (if so
      inclined) Scott Hamilton Dewey, Foucault’s Toolbox: Use of Foucault’s Writings in LIS Journal Literature, 1990-2016,
      76 J. DOCUMENTATION 689 (2020); Scott Hamilton Dewey, (Non-)Use of Foucault’s Archaeology of Knowledge and
      Order of Things in LIS Journal Literature, 1990-2015, 72 J. DOCUMENTATION 454 (2016).


                                                            347
                                           THE BANALITY OF EVIL ?


 P.R.s, by far the dominant category (46.1% of 115 opinions), were spaced fairly evenly in
 time, with five, 1945-1950, twenty-seven, 1969-1980, and twenty-one, 1982-2014. Use
 activity of all P.R.(etc.) variants varied somewhat among the circuits, with some visible
 clustering in certain circuits and across time.
           P.R.*s, perhaps a somewhat more historically, politically, and rhetorically
 interesting category for criticizing Korematsu, basically all appeared from 1985 onward,
 with only two earlier pioneers that gently criticized the opinion appearing in 1973 (a
 dissent urging fellow panelists to reflect on the “unfortunate ruling in Korematsu”)234 and
 1981 (in a case involving U.S. service members deliberately exposed to radiation in early
 atomic weapons tests, the dissent questioned the over-extension of absolute official
 immunity for federal officers).235 Only two more P.R.*s appeared in the 1980s (1985 and
 1986), followed by a comparative flood of eighteen from 1990-2004 (including at least one
 such use in every year except 1993 and 1998), then only three later stragglers in 2008,
 2014, and 2015.         Most circuits produced either zero (Fourth, Eleventh and Federal
 Circuits), one (Eighth Circuit) or two (First, Second, Sixth, Seventh, Tenth, D.C. Circuits)
 PR*s, often spaced fairly widely in time, but the Third Circuit had three while the Fifth
 and Ninth Circuits each had four P.R.*s.
           Twenty-one of the twenty-four cases producing P.R.*s involved civil rights
 claims. Notably, nineteen of the P.R.*s appeared in alternate opinions, including one
 concurrence and eighteen dissents. Sixteen of these dissents found dissenting judges
 using Korematsu to warn against executive or legislative overreaching and/or improper
 denial of equal protection or fundamental rights in cases where the majority rejected
 rights claims.         The one concurrence accepted the majority’s decision in a drug
 prosecution, but still worried about Korematsu-like excesses in the war on drugs.236

234
    United States v. Fern, 484 F.2d 666, 670 (7th Cir. 1973) (Gordon, District J., diss.)[discussing a federal drug
    prosecution]
                  It is clear from the facts of this case that the search of the appellant’s handbag
                  conducted here cannot be brought within the ambit of Terry. The mere fact that
                  the appellant fitted a ‘behavioral profile’ does not constitute probable cause for the
                  search in this case. Moreover, when faced with a heated issue such as this, I think we
                  might reflect on the unfortunate ruling in Korematsu, before approving the search in
                  this case.
235
    See Jaffee v. United States, 663 F.2d 1226, 1252 (3d Cir. 1981) (Gibbons, J., diss.)
                  In 1949, when Judge L. Hand wrote the Gregoire opinion, the notion of absolute
                  official immunity for federal officers probably seemed a politically attractive idea.
                  We had recently fought a war in which many things had been done which were
                  thought necessary for victory, but which with the benefit of hindsight, probably
                  would seem quite inconsistent with our concept of democracy and its traditions
                  of personal integrity and individual freedoms. [See, e.g.,[Korematsu] (legitimizing
                  wholesale internments of Japanese)]. It was perhaps fortunate that the Gregoire issue
                  did not reach the Supreme Court for some time.
236
    See United States v. Inman, 902 F.2d 35 (6th Cir. 1990) (Nathaniel R. Jones, J., conc).


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 Two P.R.*s were in majority opinions finding in favor of rights claimants;237 one came
 in a majority opinion rejecting an affirmative action program;238 and one P.R.* found a
 conservative judge dissenting from a more liberal majority’s upholding of an affirmative
 action program (and rolling out Plessy to help make his point).239 Only one of the P.R.*s
 invoked one of the Korematsu dissents.240
            The five P.R.**s, mostly criticizing Korematsu’s critics in P.R.*s and also a
 relatively interesting category (that tended to produce lengthy and sometimes vitriolic
 discussion), all appeared, relatively evenly spaced, between 1986 and 2003, with two from
 the Second Circuit (1986, 1995), one each from the Ninth (1990), Eighth (1998), and
 Fourth (2003) Circuits. Two of the P.R.**s appeared in conservative dissents against more
 liberal majorities in civil rights cases, one from the Second Circuit concerning pretrial
 detention based on a determination of dangerousness,241 and one from the Ninth Circuit
 concerning free speech, public protest, and appropriate time/manner/place restrictions
 (and representing conservative Judge O’Scannlain’s one invocation of Korematsu).242

237
    See Patrolmen’s Benevolent Ass’n. of City of New York v. City of New York, 310 F.3d 43, 53 (2d Cir. 2002); see
    also Rodriguez v. Robbins, 804 F.3d 1060, 1074 (9th Cir. 2015).
238
    See Hopwood v. State of Texas, 78 F.3d 932, 945 n.26 (5th Cir. 1996).
239
    See Hunter ex rel. Brandt v. Regents of University of California, 190 F.3d 1061, 1075 (9th Cir. 1999) (Beezer, J.,
    diss.) (also invoking Plessy).
240
    See e.g., Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1986) (Calabresi, J. diss.).
241
    See United States v. Melendez-Carrion, 790 F.2d 984, 1013 n.5 (2d Cir. 1986) (Timbers, J., diss.)
                  These procedural safeguards, including an individual determination of probable
                  cause to believe the defendant has committed a serious crime, an individual
                  detention hearing, the right to counsel, the right to present evidence, the right
                  to cross-examine witnesses, and the burden of “clear and convincing evidence”
                  imposed on the government, were not present in the case of the internment of
                  the Japanese-Americans during World War II. [. . .] Judge Newman’s allusion to
                  [Korematsu], fails to recognize these significant distinctions. While Korematsu indeed
                  may be a regrettable blemish in the history of American jurisprudence, obviously
                  the form of detention authorized under the Bail Reform Act, with its attendant
                  procedural protections, is not such a departure from American ideals of individual
                  liberty.
242
    See Bay Area Peace Navy v. United States, 914 F.2d 1224, 1237 (9th Cir. 1990) (O’Scannlain, J., diss.)
                  In short, the Coast Guard properly acted in an anticipatory fashion to ensure
                  security and to promote maritime safety. In so doing, it was advancing significant
                  governmental interests through a narrowly-tailored regulation. The majority’s
                  implication that a catastrophe must first occur before a sufficient safety-and-
                  security zone may be established is not compelled by the first amendment.11 [FN
                  11] Ironically, the concurrence considers this view of the government’s security
                  interests to be “overblown,” yet itself goes on to represent this dissent as concluding
                  that “even speculative security interests are so significant as to justify almost any
                  type of regulation”. Ante at 1232. Such an assessment grotesquely mischaracterizes
                  and distorts this dissent. Only a focal length of 150 feet (the spread between
                  seventy-five yards and twenty-five yards) constitutes the entire jurisprudential
                  difference between the majority and the dissent. The three-hour-long safety-and-
                  security zone of seventy-five yards, therefore, is scarcely on an analytical par with
                  the forcible internment of Japanese–Americans during World War II. [. . .] The
                  attempted conflation of this case with Korematsu cannot stand; excited references
                  to emotionally charged symbols are of no assistance to good-faith analysis of the
                  relevant constitutional issues.
                                                         349
                                           THE BANALITY OF EVIL ?


 Other P.R.**s found majority or concurring opinions criticizing a dissenter’s allegedly
 improper use of Korematsu, as in a key Fourth Circuit enemy combatants case from the
 “War on Terror”243 and a Second Circuit case in which the majority rejected prisoners’
 claim of a fundamental right to access to nude photos of loved ones.244 [The fifth case
 categorized as a P.R.**, though somewhat different from the others, did not fit neatly in
 any other bin and is interesting enough to deserve some special attention.245 ] Since
 2003, there have been no further slap-downs alleging inappropriate waving of the bloody
 shirt of Korematsu.
            Of the nine Q.s (1971-2012), two came from the Fourth Circuit (1971, 1982),246
 four from the D.C. Circuit (1972, 1979, 1988, 2012),247 and one each from the Fifth,248


243
    Hamdi v. Rumsfeld, 337 F.3d 335, 344 (4th Cir. 2003) (Wilkinson, J., conc.)
                 Moreover, the recharacterizations of the holding in the dissent are manifestly far
                 afield. The panel did not suggest that its holding would apply to any part of the
                 world where American troops might happen to be present.[. . .] There is not
                 the slightest resemblance of a foreign battlefield detention to the roundly and
                 properly discredited mass arrest and detention of Japanese-Americans in California
                 in Korematsu. These attempts to recharacterize the holding of the panel find no
                 support in the opinion’s text itself.
244
    See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1986)
                 The dissent’s suggestion that our affirmance of a prison regulation barring certain
                 naked pictures from the prison puts us on the damnable path to [Korematsu]
                 (upholding an executive order that excluded citizens of Japanese ancestry from
                 restricted areas of the West coast and placed them in relocation centers), is a lyric
                 leap. Courts do not exist to rubber stamp bureaucratic excesses. There is a point
                 where judicial deference to executive or administrative expertise must be denied.
                 Nude pictures of loved ones in a prison setting do not begin to approach that point.
245
    See e.g., Northern Kentucky Right to Life Committee, Inc.v. Kentucky Registry of Election Finance, 134 F.3d
    371 (6th Cir. 1998) (Ryan, J., conc./diss.)
                 Courts are used to adjudicate “political” issues, as I understand the term, all the
                 time, and in an honorable and wholly appropriate fashion. There is nothing more
                 deeply and honorably rooted in our tradition of constitutional self-government than
                 the people’s First Amendment right of access to the court to protect the hard-
                 won political principle of free speech. Surely it is readily apparent that “political”
                 considerations inspired the litigants and their various supporters and detractors in
                 a variety of noteworthy Supreme Court cases-cases, indeed, that have shaped the
                 constitutional landscape. See, e.g., [. . .]; [Brown v. Board]; [Korematsu]; [. . .]. I
                 will not belabor the point, but it seems self-evident to me that while it is obviously
                 improper for judicial decision-making to be colored by political considerations, it
                 is salutary indeed that the litigants can utilize the courts in this country in order to
                 fight “political” battles. Indeed, the lower court itself seemed to recognize this much
                 when it observed, in denying fees to the Registry under section 1988, that the type of
                 challenge brought by the plaintiffs here “draw[s] out the nuances of the guarantees
                 of the First Amendment[. . .]”
246
    See United States v. Chalk, 441 F.2d 1277, 1283 (4th Cir. 1971) (quoting Korematsu at 231 (Roberts, J., diss.));
    United States v. Brainer, 691 F.2d 691, 700 (4th Cir. 1982) (quoting Korematsu at 246 (Jackson, J., diss.).
247
    See Bulluck v. Washington, 468 F.2d 1096, 1116 (D.C. Cir. 1972) (quoting Korematsu at 216); Narenji v. Civiletti,
    617 F.2d 745, 754 (D.C. Cir. 1979) (joint statement dissenting against decision not to rehear case en banc) (the
    Iranian students case); Washington Post Co. v. U.S. Dept. of State, 840 F.2d 26, 35 n.66 (D.C. Cir. 1988); United
    States v. Burwell, 690 F.3d 500, 533 n.6 (D.C. Cir. 2012).
248
    See Fisher v. University of Texas at Austin, 631 F.3d 213, 248 (5th Cir. 2011) (Garza, J., concurring).


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 Seventh,249 and Eighth Circuits.250 These included two dissents and one concurrence,
 and they invoked Justice Jackson’s dissent five times, Justice Murphy’s once, and Justice
 Roberts’ once. The eleven Substantial uses of various sorts (1947-2015) included three
 from the Ninth Circuit (1947, 1950, 1990);251 two from the Sixth Circuit (both penned by
 the ubiquitous Judge Jones in 1992 and 1996);252 two from the D.C. Circuit (1977, 1992);253
 and one each from the Second (1986),254 Third (2015),255 Fourth (2003),256 and Eighth
 (1987)257 Circuits. Eight of the eleven Substantials (all but one after 1950) concerned civil
 rights issues; the other was an unusual (and unsuccessful) German American reparations
 case from 1992.258 The Substantials showed two dissents, one concurrence, and one
 concurrence/dissent, and they invoked Jackson’s dissent twice, Murphy’s once, and both
 Jackson’s and Murphy’s in one case.259



      3.9. KOREMATSU: CO‐CITING OF OTHER CASES

 Fifty-one        (44.3%)       of    the      115     opinions        citing      Korematsu        (excluding         the
 reparations/exoneration cases, etc.) also cited other cases from the batch of key civil
 rights cases—Bolling, McLaughlin, Loving, Plessy, Dred Scott—and/or Japanese American
 cases—Hirabayashi, Endo, Yasui, Oyama, Hirabayashi—that were also checked regarding

249
    See Doe on Behalf of Doe v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411, 418 (7th Cir. 1986).
250
    See e.g., Hunt v. Roth, 648 F.2d 1148, 1165 (8th Cir. 1981) (quoting Korematsu at 240 (Murphy, J., dissenting)).
251
    See e.g., DeWitt v. Wilcox, 161 F.2d 785, 787-788, 790-791 (9th Cir. 1947); see Bridges v. United States, 184 F.2d
    881, 887 (9th Cir. 1950); see also Bay Area Peace Navy v. United States, 914 F.2d 1224, 1232-1233 (9th Cir. 1990).
252
    See United States v. Taylor, 956 F.2d 572, 592 (6th Cir. 1992) (Jones, J., diss.); see United States v. Smith, 73 F.3d
    1414, 1422 (6th Cir. 1996) (Jones, J., concurring).
253
    See Culver v. Secretary of Air Force, 559 F.2d 622, 636 (D.C. Cir. 1977) (Bazelon, J., dissenting) (quoting
    Korematsu at 219); Jacobs v. Barr, 959 F.2d 313 (3d Cir. 1992).
254
    See United States v. Melendez-Carrion, 790 F.2d 984, 1004 (2d Cir. 1986).
255
    See Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015).
256
    See Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003) (Motz, J., dissenting).
257
    See McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (Lay, J., conc./diss.).
258
    See Jacobs v. Barr, 959 F.2d 313 (3d Cir. 1992). See supra note 167.
259
    A separate section on the depth of use of Hirabayashi was not included in the main text because it was likely
    less interesting, with an overwhelming number of passing references and fewer other interesting categories,
    while some potentially more interesting issues likely were addressed by discussing quotations. At any rate,
    262 of the 306 opinions citing Hirabayashi (85.6%) were in the P.R. (passing reference) range, with eleven of
    those making two passing references, ten of them giving a brief quote (so, P.R.Q.s). Hirabayashi had 31 Q.s,
    overwhelmingly dominated by the “odious distinctions” quote. Again, leaving aside the richer original 9th
    Circuit appearance of what would become Korematsu (1944) as well as the 1980s exoneration/reparations
    cases, only ten opinions, by a liberal definition, could be considered to have offered more “Substantial”
    treatment of Hirabayashi (six of these from the 1940s and addressing the issues of those times): see O’Neal v.
    U.S., 140 F.2d 908 (6th Cir. 1944); Ex parte Duncan, 146 F.2d 576 (9th Cir. 1944); Kramer v. U.S., 147 F.2d 756
    (6th Cir. 1945); see Smith v. U.S., 148 F.2d 288 (4th Cir. 1945); see Spaulding v. Douglas Aircraft Co., 154 F.2d
    419 (9th Cir. 1946); see Atherton v. U.S., 176 F.2d 835 (9th Cir. 1949); see Smith v. U.S., 335 F.2d 270 (D.C. Cir.
    1964) (Bazelon, J., maj’y; Miller, J., diss.); see Fuller v. U.S., 407 F.2d 1199 (D.C. Cir. 1967) (Leventhal, J., maj’y;
    Fahy, J., diss.); see U.S. v. Hooper, 432 F.2d 604 (D.C. Cir. 1970); see also Hamdi v. Rumsfeld, 337 F.3d 335 (4th
    Cir. 2003) (Motz, J., dissenting).


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                                         THE BANALITY OF EVIL ?


 Hirabayashi. Hirabayashi itself was, predictably, unusually popular, appearing nineteen
 times, either alone with Korematsu or along with various other cases on the list. Bolling,
 however, was even more popular, appearing twenty-one times in cases also citing
 Korematsu, while Loving is the co-citation champion with twenty-two appearances.
 McLaughlin was co-cited twelve times; Plessy, eight times; and Dred Scott, only three times,
 all of those in the Fifth Circuit and all of them along with Plessy (1966, 2000, 2001).260
           The other Japanese American cases, aside from Korematsu and Hirabayashi, mostly
 have had more specialized and less salient roles in jurisprudence and citation, and they
 appear less frequently in association with Korematsu as such. However, Endo—still an
 important authority regarding citizenship, naturalization, and loyalty—was co-cited
 with Korematsu five times through 2015.261 Takahashi also appeared five times,262 Yasui263
 and Oyama264 only twice.
           Thirty-two of the uses of other cases in conjunction with Korematsu appeared
 from 1945-1979, all but six of those, 1966-1979; the other twenty-two, 1982-2015. Certain
 co-cited cases gained or lost relative popularity between the two periods. For instance,
 Hirabayashi appeared thirteen times in the earlier period, only six times in the latter
 period.      Bolling faded even more dramatically, with seventeen earlier, four later
 appearances. Loving had fifteen earlier, seven later appearances; McLaughlin almost
 vanished in the later period with eleven earlier appearances, one later appearance. Plessy
 and Dred Scott gained momentum in the later periods, with three/five and one/two
 earlier/later appearances, respectively.              Overall, the Japanese American cases were
 mostly rediscovered in the post-1980 period, with earlier/later scores as follows: Endo:
 three/two; Takahashi: one/four; Yasui: one/one; Oyama: zero/two.
           As usual, different circuits made differential use of co-cited cases. Some of the
 usual heavier users of Korematsu continued in that capacity: the Third Circuit had five
 co-citations with other cases (1976-78, 2015); the Fourth Circuit, seven co-citations with
 other cases (1970-2003); the Fifth, eleven (1945, 1966-2001); Ninth Circuit, ten (1946-1975,
 1999, 2014); the D.C. Circuit, six (1972-1992). Other circuits provided co-citations little if at
 all: First Circuit, once (with Plessy, 2014); Second Circuit, three times (1972-75, including

260
    Database searches also bring up situations where particular cases are not being cited, but either earlier or
    later related cases may be—as with citations of the litigation to exonerate Gordon Hirabayashi that reached
    the Ninth Circuit by 1987—as well as, in recent years, relatively numerous appearances of names such as
    Hirabayashi, Korematsu, and Yasui, reflecting the formation and active participation by descendants of
    earlier Japanese American internment defendants in various public interest organizations committed to
    civil rights.
261
    Ninth Circuit, 1946, 1949; D.C.Circuit, 1979, 1992; Third Circuit, 2015.
262
    Fourth Circuit, 1975; Seventh Circuit, 1986; D.C. Circuit, 1990; Tenth Circuit, 2004; Ninth Circuit, 2014.
263
    Ninth Circuit, 1946; D.C. Circuit, 1992.
264
    D.C. Circuit, 1990; Fourth Circuit: 1995.


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 Hirabayashi, Bolling, McLaughlin, Loving); Sixth Circuit, never; Seventh Circuit, three times
 (1979, 1986, 1994, including only Bolling, Loving, and Takahashi); Eighth Circuit, twice (1971,
 1974, including Bolling, McLaughlin, and Loving); Tenth Circuit, twice (1989, 2004, including
 Loving and Takahashi); Eleventh Circuit, never; Federal Circuit, once (1989, including Bolling
 and Loving).
           Few individual judges were repeat players in the co-citation game. The few who
 cited Korematsu together with another targeted case more than once include: Judge
 Cudahy, Seventh Circuit (1986, 1994, co-citing Bolling, Loving, and Takahashi); Judge
 Denman, Ninth Circuit (1947, 1949, Hirabayashi and Endo only); Judge Tuttle, Fifth Circuit
 (1968, 1977, co-citing Hirabayashi (in both), Bolling (in both), McLaughlin, Loving); Judge
 Winter, Fourth Circuit (1970, 1971, co-citing Hirabayashi, Bolling (in both), McLaughlin,
 Loving, Plessy); and Judge Wisdom (1966, 1968, co-citing Hirabayashi, Bolling (in both),
 McLaughlin).265




       4. A COMPARISON OF CIRCUIT COURT USES OF KOREMATSU AND
       HIRABAYASHI WITH HISTORICAL TRENDS AND SUPREME COURT
       USES, 1943‐2016

 This Section offers a wider comparative historical framework for this study by providing
 a brief summary of the political, social, and cultural history of the postwar United States
 that set the backdrop for all developments regarding Korematsu or Hirabayashi at both the
 Supreme Court and federal circuit court levels.266 Although some or all of this may only
 be review for members of the legal community,267 particularly those who were formerly
 undergraduate history majors or graduate students in history, this approach, by
 illuminating the wider context, seeks to prevent the law and legal evolution from hiding
 in either an ahistorical fantasy land or an “exceptional” purely legal realm where,
265
    Again, Judges Tuttle and Wisdom appear on this list of co-citers, but Judges Brown and Rives do not. See
    Bass, The “Fifth Circuit Four”, supra note 63.
266
    [Any of the brief, encyclopedic summary here can, of course, be documented and footnoted to death. I
    haven’t done so, but I can].
267
    Anyone who has been a history professor or teacher likely knows not to put too much faith in readers’
    general historical awareness, though. Plenty of Americans long have, and still do, largely subscribe to Henry
    Ford’s famous statement that “History is bunk”. See generally H. L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS
    ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES (3th ed. 1946). Mencken gives the short version
    of the quote that has become best remembered in history. The full quote, from an interview Ford gave to
    the Chicago Tribune in 1916, allegedly reads, “History is more or less bunk. It’s tradition. We don’t want
    tradition. We want to live in the present, and the only history that is worth a tinker’s damn is the history
    that we make today”. See Martin, G. (2014). History is bunk. In The Phrase Finder online. Retrieved April 17,
    2014 from https://www.phrases.org.uk/meanings/182100.html.


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                                            THE BANALITY OF EVIL ?


 frankly, law too often is happy to reside. A close comparison of relevant time frames
 both inside and outside the law may, among other things, help to reveal the degree to
 which outside forces and developments were driving changes in the law—as opposed to
 assumptions to the contrary within the legal profession.
              America’s prewar history of discrimination against Japanese Americans, as well
 as the mounting friction between Japan and the United States over geopolitical issues in
 China and the Pacific region from the 1930s onward, which culminated in the Japanese
 attack on Pearl Harbor which in turn triggered the policies and governmental or legal
 decisions that allowed the Japanese American internment to move forward from early
 1942 onward, are relatively lengthy and complex and are discussed in greater detail
 elsewhere.268
              After a year of danger and uncertainty for the Allies in 1942 in which the Axis
 powers reached their respective high-water marks, from 1943-1945, the Allies finally
 began to roll back the Axis powers in World War II, with ultimate victory looking
 increasingly inevitable throughout the later years of the war. With final victory and
 unconditional surrender of Nazi Germany and Imperial Japan secured, ahead of the
 anticipated schedule, by September 1945 (with the help of the atomic bomb), the United
 States turned toward the matters of de-commissioning and bringing home millions of
 service members scattered around the globe, and reintegrating them into everyday life
 as the nation converted from war production back to a peacetime economy. Peace was
 shorter-lived than the architects of the new United Nations international organization
 had dreamed, though, as conflicts over the future of the postwar world arose between
 the world’s last two remaining superpowers, the United States and the Soviet Union.
 Such friction was quite visible already in Europe by 1947, and grew and spread from
 there as the two former allies gradually settled into the Cold War, which also broke out
 into hotter “proxy wars” in the Korean War from 1950-1952 and the Vietnam War from
 (roughly) 1965-1972. In the United States, as with the earlier aftermath of World War I,
 Americans launched into a nationwide anti-radical “Red Scare” that included the
 hunting of alleged pro-Soviet spies and the quelling of domestic radicals and
 “subversives”, culminating in the hysterical red-baiting remembered as McCarthyism. A
 nuclear standoff between the two superpowers that developed during the 1950s reached
 a crescendo with the Cuban Missile Crisis of 1962, when the United States and Soviet
 Union came closer to actual nuclear war than at any time before or later. Thereafter,
 Cold War tensions eased somewhat.


268
      See Dewey, supra note 10, at 55-90.


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Through the Cold War years, the African American Civil Rights movement was struggling
to build upon racial progress achieved gradually during the 1930s-1940s, while
encountering stiff headwinds due to the postwar conservative reaction, during which
many Americans viewed both labor organizing and racial equality as emblematic of the
Spread of International Communism. The Southern Civil Rights movement against legal
segregation especially in the American South, led by figures such as Dr. Martin Luther
King, Jr., sought both to display Americanism and seize the moral high ground using
nonviolent tactics. During the 1950s, key legal victories at the U.S. Supreme Court
striking down segregation in particular contexts—such as Brown v. Board of Education
(1954) and Browder v. Gayle (1956) (the Montgomery Bus Boycott case)—unfortunately
were followed by limited actual progress on the ground and in some cases were met with
resistance, threats and intimidation, and outright violence. The Civil Rights movement
continued its non-violent political mobilization while attracting domestic and
international media attention. By 1963, the movement was starting to force initially
reluctant U.S. federal officials to act more aggressively to promote racial equality. In
1964, the major new Federal Civil Rights Act was passed by Congress, over
pro-segregationist Southern legislators’ resistance, partly in the name of the recently
slain President John F. Kennedy. Other important federal enactments, such as the 1965
Voting Rights Act and the 1968 Fair Housing Act, followed.
        By the later 1960s, youth radicalism was visibly on the rise, as well as a
nationwide crime wave associated with the unusually large Baby Boom generation
reaching late adolescence/young adulthood. Civil rights activism in the Northern inner
cities gradually abandoned non-violence in favor of greater militance, as leadership was
taken over by younger and more radical leaders. Around the same period, especially
from 1967 onward, a youth anti-war movement protesting U.S. involvement in Indochina
grew, especially on college campuses. Other protest movements also emerged more
visibly: feminism, Brown Power (concerned with Latino civil rights), etc. Young radicals
grew more radical and more militant in the anti-war movement up until the Kent State
incident of 1970, when U.S. National Guardsmen at an Ohio University campus shot and
killed four militant protesters. After a gradual earlier winding down of U.S. involvement
in the Vietnam War, the United States withdrew its last forces from Indochina in 1972.
Saigon quickly fell to Communist North Vietnamese forces.
        1968 already had been a watershed year, in which new federal reforms together
with youth radicalism and militance triggered a visibly growing conservative backlash.
The assassination of Dr. King in April 1968 brought the worst rioting to the most cities
that the nation had ever seen.


                                          355
                                            THE BANALITY OF EVIL ?


 Student radicals clashed with Chicago police at the infamous 1968 Democratic
 Convention. Ultimately, American voters elected President Richard Nixon, a moderate
 conservative who tacitly promised to slow down the pace of civil rights progress and
 other reforms, and who, through his “Southern Strategy”, began the process of turning
 conservative Southern Democrats into conservative Southern Republicans.
              During the 1970s, civil rights, feminism, environmentalism, and other
 movements continued to win some victories, yet also gradually lost momentum and
 faced growing conservative pushback during times of mounting economic troubles. A
 sense of national frustration helped bring the election in 1980 of popular,
 arch-conservative President Ronald Reagan, who promised not just to slow but to roll
 back liberal reforms of the 1960s-1970s. Reagan started that process in earnest during his
 two terms, while later waves of further increased political conservatism—reflected in the
 “Contract With America” Congress led by Newt Gingrich after the 1994 midterm
 elections and the elections of conservative Republican Presidents George W. Bush
 (2001-2008) and Donald Trump (2017-2021)—confirmed the overall nationwide
 conservative backlash, while moderate, pro-corporate Democratic Presidents Bill Clinton
 (1993-2001) and Barack Obama (2009-2017) mostly could only help to slow or moderate
 the overall conservative trend.269 The various Republican administrations from Reagan
 onward also were more successful at placing more, increasingly conservative Republican
 judges on all levels of the federal bench, helping to lock in Republican political
 advantages even when Democrats controlled the White House or Congress.
              Although Korematsu and Hirabayashi admittedly might not be the ideal cases to
 measure the overall performance of the federal judiciary against the political and
 historical backdrop of the times, nevertheless, use of the two cases by federal circuit
 courts generally matches the shifts of political winds rather well. Both cases were
 featured in the post-war clean-up phases, plus the onset of the Cold War. Korematsu, as
 noted earlier, went entirely dormant between August 1950 and December 1966, while
 Hirabayashi saw sporadic uses in the later years of the Cold War as well as occasional early
 applications to civil rights situations (1950, 1956, 1958, 1959, 1960, most of those dissents
 and/or defeats for civil rights activists)—but Hirabayashi already had shifted into its
 primary role as a general federal criminal procedure precedent, including prosecutions
 arising from the 1960s-1970s Boomer crime wave (like Korematsu (1943)). Korematsu was
 belatedly rediscovered for civil rights purposes in late 1966; Hirabayashi not until 1968;

269
      The historical situation of the Japanese American reparations movement, occurring during the already
      conservative 1980s when overall civil rights progress was on the defensive at best, is an interesting topic
      left for an anticipated future study. For a very brief background on “the road to reparations”, see Dewey,
      supra note 10, at 91-97.


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 both of those well after the really hot phase of the Civil Rights movement re-started in
 1963-1964, and also a while after the U.S. Supreme Court saliently rediscovered both
 cases for civil rights purposes in McLaughlin in 1964 (and in Loving in 1967). Thereafter,
 both cases saw at least small flurries of use in civil rights contexts during the 1970s, with
 the federal circuit courts using Korematsu little more than, and Hirabayashi less than, the
 Supreme Court itself (although the circuit courts might have been making greater use of
 other opinions that recycled the Korematsu or Hirabayashi language without citing
 them).270 During the 1980s, and especially after 1988 and congressional apology and
 reparations, Korematsu and Hirabayashi both shifted into their primary hand-wringing
 roles, with Hirabayashi eagerly brandished by conservative judges to help batter down
 affirmative action programs or other efforts to address structural racism, while more
 liberal judges used Korematsu-as-constitutional-train-wreck to warn their more
 conservative counterparts against excesses in the denial of civil rights. Both Korematsu
 and Hirabayashi also saw some rediscovery during the post-2001 “War on Terror”. Such
 circuit uses generally tracked and followed earlier, similar uses by the Supreme Court.




          CONCLUSION

 In this study, various identifiable data categories have been reviewed systematically, in
 an effort to provide a more complete picture of the life-cycles of two major, interesting,
 and problematic Supreme Court cases than might be available through a more
 conventional narrative study that only cherry-picked anecdotal items of interest. Of
 course, readers (understandably!) might wish they’d received a cherry-picked (and
 perhaps more readable) anecdotal treatment instead. Some of the data, hopefully, might
 be sort of interesting—perhaps regarding the significant (and possibly unexpected?)
 participation of both Korematsu (1943) and Hirabayashi in the construction of the postwar
 edifice of criminal procedure, quite remote from their wider constitutional and civil

270
      Regarding the Supreme Court’s use of Korematsu from 1964 onward, see id. at 118-131. The Supreme Court
      made notably less use of Hirabayashi than the circuits for the concurrent sentences doctrine (ten such uses,
      1946-1969, ending with Benton v. Maryland, the case that first really called the doctrine into question), but
      greater use of the opinion for civil rights purposes than the circuits—including ten cases from 1948-1980
      (and another seven from 1986-2016) using the “odious to a free people” quote, plus another six from 1971-
      1974 (and two from 1982-1987) correctly associating Hirabayashi with national origin, plus other three cases
      (other than McLaughlin) quoting a misleading quotation from Hirabayashi: “racial discriminations are in
      most circumstances irrelevant and therefore prohibited” (Hurd, 1948; San Antonio, 1973; Parents Involved,
      2006). Interestingly, this particular misleading and anachronistic quote from Hirabayashi only appears in its
      entirety one time in the federal circuit court jurisprudence: Hopwood v. State of Texas, 78 F.3d 932 (5th Cir.
      1996) (Jerry Smith, J.). [Citations for all Supreme Court cases can be provided if desired].


                                                          357
                                        THE BANALITY OF EVIL ?


 rights implications; perhaps conservative judges’ eager grasping of the color-blind
 language of Hirabayashi, mostly post-1980, as civil rights progress was mostly being
 beaten to a standstill, is of interest, as is perhaps more liberal judges’ hand-wringing over
 Korematsu in the post-1980s period (along with more conservative judges’ challenges to
 that particular rhetorical bludgeon). Perhaps federal circuit courts’ total ignoring of
 Korematsu between 1950 and the very end of 1966 (notwithstanding the Supreme Court’s
 pointed flagging of Korematsu in key civil rights cases in 1954 and 1964) is of some
 interest. Perhaps the marked chronological pulsing/clustering patterns of citations of
 the internment cases in various circuits—which don’t always match chronologically
 between circuits, and which would require additional analysis to try to determine
 whether such pulsing was endogenous or the result of imported influences from foreign
 circuits271 —is of at least some interest. Perhaps the evidence regarding relative “wins”
 or “losses” on civil rights issues in the 1970s is of some interest. Perhaps the relative
 surge in the quoting of Korematsu dissents, and the co-citing of Korematsu or Hirabayashi
 with the likes of Plessy—mostly after it was “safe” to do so—may be of some interest. At
 least in theory, the circuit courts’ overall misinterpretation of Korematsu (and following
 of the Supreme Court in doing so) as being a case about “race” when it was really about
 national origins (in the particular and peculiar context of enemy nationals during
 wartime), might be of some interest.
           Perhaps even some of the rather quaint historical details—like somebody getting
 busted and imprisoned for Prohibition violations longer after Prohibition had ceased to
 be the law or the Constitution—might be of interest.272
 But, perhaps not.
           Some other, more inconclusive results—such as efforts to track recurring patterns
 of citation or quotation by particular federal circuit judges, or other mostly failed efforts
 to track and detect recurring patterns—likely are of no interest. [Oh, well—it’s not for lack
 of trying].
           Yet as indicated earlier, perhaps of most interest for the project overall is the
 extent to which it was, indeed, the dog that didn’t bark.273




271
    Regarding the exportation/importation and incorporation of “bad” legal doctrines and holdings between
    foreign federal circuits, see e.g., Dewey, The Case of the Missing Holding, supra note 16.
272
    [As always, people with some sense of history may be more inclined to see some modest level of interest
    where other, normal people don’t].
273
    See DOYLE, supra note 43.


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This project—really at the Supreme Court level as well as the federal circuit court level—
essentially presents a conundrum:

    • First, if the Japanese American internment cases were indeed among the most awful,
         legal and constitutional train-wrecks of American history—then why were they not
         solved, by legal and constitutional (i.e., judicial) means, much earlier? [And, at the very
         latest, in the 1980s, in the Hohri litigation—before political, non-judicial branches of
         government “instructed” the judiciary as to what to think?]

    • Secondly, if the whole, tragic and ultimately unnecessary Japanese American
         internment process of the war years was, nevertheless, legally justifiable (given
         the unfortunate major gap between what people (and judges) knew at the time,
         and what we all now (somewhat smugly) recognize with hindsight)—then why did
         federal judges begin fulminating about it (only) after they received a (notably,
         inherently political and non-judicial) signal that it was OK to do so?

And—unfortunately—the U.S. federal judiciary has no very satisfactory answer to this
conundrum. And no amount of ostentatious hand-waving or hand-wringing, long after
the fact, and long after it became “safe” to do so, provides an adequate answer.
           This particular study was a study of how the major Japanese American
internment cases not only were used, but were not used. And, the many details of the
study show that, contrary to whatever might have been anticipated or wished for going
into the study, federal circuit courts generally did little or nothing to use the cases to
resolve the constitutional problems that federal courts had helped to make—until after
non-judicial, political branches of government sought to resolve the problem, very
belatedly, and in so doing, told courts what to think about the cases. Basically, circuit
courts’ uses of the cases tracked both overall trends in politics and history, and earlier
signaling uses by the Supreme Court—rather like a delayed-action political weathervane.
Rather disappointing?


           Yes. [At least for people who believe in the myth of The Law and The Courts as
appropriate de facto super-legislatures to (justly and accurately) resolve all human
problems. Here, judges and courts only showed any significant awareness of the problem
after non-judicial authorities instructed them to do so—and more than forty years too
late].




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                                  THE BANALITY OF EVIL ?


Or to summarize, perhaps more bluntly and brutally: if the (post-John Marshall, Marbury
v. Madison) judicial super-legislature (as enhanced at various moments in the later
nineteenth and twentieth centuries, and raised to an extreme level in the politically
dysfunctional recent decades since the 1970s) can solve everything, as they implicitly
claim to—why didn’t they, in a timely fashion, in the Japanese American internment
context? And, alternately—if they can’t solve everything: why don’t they stop making
claims they cannot fulfill, and perhaps go back to being “the least dangerous branch of
government” as envisioned by the Constitution’s framers?
         Notably, and realistically, in response to various later, comfortably post-1970 and
post-1988 judges and scholars who wondered aloud how and why the likes of Hugo Black
and William O. Douglas—life-long, clearly demonstrated friends of civil rights—could
have gone along with Korematsu and Hirabayashi: perhaps some much wiser and more
experienced judges, some of whom had some actual experience in real political life
outside the law (in the case of Hugo Black, experience of not one but two World Wars),
recognized what was actually politically possible under the bizarre, ugly political and
actual realities of total war? In a way that comfortably post-1970 lawyers, judges, and
scholars generally cannot?
         Such people might be engaging in the classic cognitive-historicist fallacy of
imagining that they, suddenly transported back to 1942 with all their smug post-1970
and post-1988 hindsight-fueled awareness magically intact, would have done “right” at
the time in a way their more benighted actual denizens of the early 1940s could not.
         That is a cute fantasy—but also rather laughable. [Similarly to high-school or
college students who might envision themselves as having been antebellum Abolitionists
at a time and in places where Abolitionists were not very welcome and perhaps got
lynched. Or people who think they readily would have risked life, limb, and all their
family members to resist the Nazis when it was so much easier just to go along with the
Nazis.   Or that Hollywood movie that had a 1990s-vintage American super-carrier
transported back in time to deal with the much more rudimentary Japanese
1940s-vintage fleet before Pearl Harbor].
         In particular—would people who (somewhat unquestioningly) agreed with
whatever Congress said in 1988, after mostly failing to do justice or stick their necks out
on the issue in any other way before then, likely somehow have been quite heroically
different when the same Congress said something back in the much more charged and
dangerous days of 1942?
To put it mildly: probably not.



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 This is not, of course, to gratuitously bash federal judges, who are and long have been
 of course mostly very bright, hard-working, conscientious people, as well as their clerks.
 [Few of the rest of us would do any better in dealing with difficult issues now, and even
 fewer of us would have done any better back in the crisis/panic period of 1942].
              It is,     however,      to call out the traditional smug ahistoricism and
 pseudo-timelessness/universality of The Law. [That is, pretending, at any given moment
 in time, that The Law, in whatever form it arrives at after various political and historical
 processes, is and always was and will be The Law, and was always supposed to be that
 way, and is right and true, regardless of whatever particular political and historical
 processes that formed it]. By this quasi-religious understanding of The Law, both the
 Dred Scott decision, and for that matter the Fugitive Slave Act, were in their day of course
 The Law, and thus “right” and to be respected and revered, before a long, bloody
 American Civil War and its aftermath declared them to be, in fact, no longer The Law or
 “right”. The somewhat tortured history of the Japanese American internment cases
 offers a less bloody, but equally blatant, example of the political re-visioning of what
 was, in fact The Law and what was, therefore, “right”.
              There is another, perhaps somewhat disturbing, temporal anomaly associated
 with the whole legal/constitutional train-wreck of the Japanese American internment
 and the undoing of it.              Although this could of course be purely coincidental, it is
 nevertheless noteworthy that the congressionally sponsored study that started the
 process of assembling the evidentiary base, later used to challenge and officially reject
 the internment began in 1981—after the last two surviving members of the Korematsu
 and Hirabayashi Courts, retired former Justices William O. Douglas and Stanley Reed, both
 passed away at advanced ages in early 1980. [Justice Hugo Black, author of the Korematsu
 opinion, had died earlier in 1971, while Justices Frank Murphy and Robert H. Jackson, the
 main dissenters in the opinion, both died relatively soon after the Second World War in
 1949 and 1954, respectively].                If this specific timing was indeed a factor of any
 significance—if, in other words, justice had to await the passing of two formerly
 important men, so that their egos no longer could be bruised—then that potentially
 represents yet another significant problem for timely “justice under the law” that
 surfaced in the internment context.274



274
      Because most members of the Korematsu Court were Roosevelt appointees, it’s possible that Republicans in
      Congress and in the Reagan administration may have had some political incentive to see the internment
      cases be discredited, also. Although Douglas lived to be eighty-one, Reed lived to be ninety-five—so waiting
      for him to pass was like waiting for things to come out from under copyright protection. [See Wikipedia for
      confirmation of all these dates, but others are available as necessary].


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                                               THE BANALITY OF EVIL ?


 To return to the overarching theme of “the banality of evil”: this study, and its related
 predecessor,           already      have      alluded      to    the     problem        of    chronic      historical
 decontextualization in the law—the law’s and legal profession’s relative overall
 obliviousness to the particular historical contexts of particular cases and decisions, as
 reflected in the lifting of selected facts and resulting legal language from one case and its
 potential application to what are, on balance, really quite different factual and historical
 contexts.275 Perhaps that phenomenon is associated with the banality of evil, and the
 process of very historically specific—and toxic—cases and opinions getting used and
 recycled through other, less dangerous court opinions and areas of the law without
 regard for the specific features that in fact made such precedential cases the sort of great
 cases that could make bad law, to paraphrase Justice Holmes.

275
      Perhaps a classic example is Eugene V. Rostow’s extended harping (in his biting 1945 critique of the Korematsu
      decision, see supra note 215) on how any decision in the Japanese American internment cases, in 1942, should
      have been entirely controlled by the historically and factually quite different situation encountered in Ex
      parte Milligan during the U.S. Civil War. See Ex parte Milligan, 71 U.S. 2 (1866); Rostow, supra note 215. Rostow’s
      argument may even have been legally correct, at least in theory: the United States had not seen any major
      threats of invasion or of overthrow of the U.S. federal government between the Civil War and World War
      II, so legal precedents had not advanced much during the intervening three quarters of a century. But
      technology, military hardware, and military tactics had advanced a great deal, far ahead of the law. Aircraft,
      and aircraft carriers, and landing craft designed to deliver soldiers armed with machine guns as well as
      tanks, did not exist in the 1860s; but they were extensively used by the early 1940s. Rostow’s argument,
      in his article, basically contends that the law should pretend that the 1940s were the same as the 1860s.
      For an amusing intellectual experiment, readers can consider the absurdity of pretending that the 1950s-
      1960s, with “Mutually Assured Destruction” by nuclear weapons delivered by aircraft or missiles within
      minutes, also operated on the same timetable as that which existed in the 1860s. More digitally inclined
      readers can consider whether not only ICBMs, but also a massive digital/Internet attack by one nation upon
      another’s critical systems, should be judged according to the technological and timeframe standards of Ex
      parte Milligan in the 1860s? It may be absurd to contend such a position in the 2020s; it may even have been
      absurd for Rostow to contend such a position in the mid-1940s, notably after any invasion threats were
      already safely laid to rest by a whole lot of U.S. and other Allied service members who, unlike Rostow, didn’t
      have the comfort of being ensconced in a law school or government agency, and many of whom paid with
      their lives, lacking the luxury of living in worlds of pure intellectual theory or government policy. Notably,
      Rostow’s article appeared during the very brief window of time when the Second World War visibly was
      drawing to a close, but before the forthcoming Cold War was yet anticipated (i.e., it was easier to make such
      arguments during the period of (temporarily) relaxing from a former crisis rather than during the onset of a
      new crisis); this was precisely the same international frame of mind among the Allied nations that produced
      the initial hopeful dreams for the new United Nations, before those dreams were too soon undone by the
      newly developing harsh reality of the Cold War. Rostow, who went from being the child of radical socialists
      (in the early 20th century) to a dutiful New Dealer (1930s-1940s) to somebody who coped with both the Cold
      War and the 1960s before becoming a neoconservative when the new, altered political reality of post-1980
      Reaganite America beckoned, demonstrated that he was nothing if not a political survivor (perhaps even a
      political opportunist?). [To put it more succinctly and evocatively: Rostow, who rose to be dean of Yale Law
      School as well as an official of the Reagan administration, rode the various waves of twentieth-century U.S.
      history like a skilled surfer]. Notably, after his 1945 article, Rostow appears to have abandoned the whole
      issue of the Japanese American internment and seems never to have revisited it – rather like most of the
      pre-1980s federal circuit court opinions reviewed in this article. Notably also, Ex parte Milligan, decided in
      1866, came at a historical moment, and with a corresponding political and rhetorical mindset, when any
      actual crisis was long past, and when the (re-)United States sought healing and closure from the horrifically
      bloody events of the early 1860s – including a gradual process of welcoming former rebels and traitors back
      into the national community. It is perhaps inevitable that facts observed, and decisions made, at moments
      of outright crisis will look different from facts observed and decisions made after the crisis is past.


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 Yet, beyond this sort of historical/factual decontextualization, an associated and perhaps
 even more powerful factor in the conversion of great cases/bad law into more
 garden-variety, apparently domesticated, recurring legal rubber-stamps on more
 mundane issues—as seen notably with Hirabayashi regarding the concurrent sentences
 doctrine—is textual/linguistic decontextualization. That is, by the nature and customary
 working of the law, it is perhaps rather too easy for lawyers, judges, and clerks, in their
 various briefs,           opinions,     and bench memoranda,                 to take some abstracted,
 decontextualized cluster of words—perhaps found in a legal brief, or some other court
 opinion, or even a Westlaw headnote—and plug it into a particular slot in a later legal
 argument in such a fashion that, for example, United States v. Hirabayashi—a big, dark case
 later determined by history to have been part of a monumental mass violation of human
 rights and of constitutionality—can appear to be no different from a hypothetical,
 relatively innocuous United States v. Smith concerning much lesser issues. Most such
 lawyers, judges, and clerks, in routinely recycling and perhaps further abstracting
 Hirabayashi’s language and holding regarding concurrent sentences, likely never had to
 interact more fully or thoughtfully with the full meaning and entirety of Hirabayashi and
 the wider (and darker) reality it represented. [And, as always, busy, hard-working federal
 judges and clerks wrestling with crowded case dockets usually would have had other,
 bigger, perhaps more urgent cases, or issues in the same case, requiring more of their
 time and attention—making a relatively quick rubber-stamp that much more desirable
 where it seemed appropriate].276
              Although one might also perhaps question to what extent this abstracting is
 really a problem, at least regarding certain routine and (supposedly) well-settled legal
 issues? That is, even if cases and opinions such as Korematsu and Hirabayashi are later
 recognized to be extremely regrettable legal/constitutional train-wrecks—does that
 mean, for example, that Hirabayashi’s widely used language/holding regarding
 concurrent sentences, or any other legal or general statement made in the case, was
 therefore also fundamentally “wrong”? And, to return briefly to the matter of temporal
 decontextualization as well: was Hirabayashi’s language/holding on concurrent sentences,
 like similar holdings in other cases, legally “right” at least until the Supreme Court in
 Benton v. Maryland, twenty-six years later, suggested that it might in fact be “wrong”?




276
      For a brief reflection from a former judicial attorney on such matters regarding time efficiency, see Dewey,
      How Judges Don’t Think, supra note 16, at 79-82.


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                                             THE BANALITY OF EVIL ?


 Whatever the ultimate answers to the questions raised in the preceding paragraph,
 perhaps the main, overarching irony to the whole situation—and to this study—is that,
 whether “right” or “wrong”, either on the truly major issues (like federal executive
 and/or legislative power in wartime and its ability to trump constitutional rights) or
 more ancillary issues (like concurrent sentences or probation as an appealable final
 judgment), toxic train-wrecks such as Korematsu and Hirabayashi are in fact by now so
 woven into the fabric of American common law as to be effectively impossible to pull
 out. That is, the Supreme Court can officially disown and overrule an earlier holding—as
 it has already done with Korematsu,277 and presumably might do with Hirabayashi at some
 later point278 —but doing that can in no way undo such opinions’ wider, hydraulic
 (perhaps in some ways corrosive?) overall impacts on the law. An earlier study explained
 in detail how the Supreme Court’s doctrine of strict scrutiny of racial and other suspect
 classifications, for purposes of Fourteenth (and Fifth) Amendment equal protection
 analysis, came into being through what were, effectively, judicial rhetorical sleights of
 hand, primarily in Bolling and McLaughlin—the selective textual/linguistic and
 historical/factual abstraction and decontextualization of Korematsu and Hirabayashi,
 which (somewhat mystically) transmuted the very fact- and situation-specific holdings
 of cases concerning wartime emergency infringements upon the civil rights of persons
 with the misfortune to share national origins with an enemy combatant nation, into a
 generalized prohibition of consideration of race in virtually any situation, which, in turn,
 started out as a convenient legal-rhetorical tool for dismantling de jure segregation, but
 later was wielded enthusiastically by conservatives, in effect, to protect de facto
 segregation by striking down most affirmative action programs or other initiatives to
 challenge structural racism for being insufficiently “color-blind”.279 [Which is not even
 to say that the doctrine of strict scrutiny is necessarily either morally or legally “wrong”
 in principle, but only to point out that it is in fact legally and constitutionally unfounded




277
    See e.g., Trump v. Hawaii (2017), at 38, https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf.
    The Supreme Court in 2017 notably followed the misunderstandings of earlier opinions by characterizing
    Korematsu as having been entirely and exclusively about race when, as explained above, it clearly wasn’t:
    “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race,
    is objectively unlawful and outside the scope of Presidential authority” [In other words, the Supreme Court
    itself, like circuit courts discussed above, ultimately got it “wrong”]. Notably, scholars have argued that
    although Korematsu formally was overturned, it still, unfortunately, survives. See, e.g. Neal Kumar Katyal,
    Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu, 128 YALE L. J. FORUM
    641 (2019). Jamal Greene, Is Korematsu Good Law?, 128 YALE L.J. FORUM 629 (2019).
278
    See, e.g.,Eric L. Muller, Hirabayashi and the Invasion Evasion, 88 N. C. L. REV. 1333 (2010). (May 2010) (calling for
    full reversal of Hirabayashi as with Korematsu (and implicitly confirming that Hirabayashi has never received
    the public salience of the better-known Korematsu)).
279
    Dewey, supra note 10, at 109-123, and 97-131 generally.
                                                           364
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 6:2


 according to the interrelated doctrines of precedent and stare decisis that, in theory,
 control the American common law].280 The present study tracks and confirms the spread
 of strict scrutiny doctrine—as well as the original fundamental misunderstanding
 regarding race and related, decontextualized snippets of language—throughout the
 various federal circuits, plus other aspects of the Japanese American internment cases
 taking firm root in the law.                  As such language gets further abstracted and
 recycled—including in later court opinions only quoting or citing a later source that
 recycled the same language without including its earlier origins—connections to
 original, perhaps tainted sources become ever more difficult to trace.281 [For instance,
 any case that cites either Bolling, McLaughlin, or Loving on strict scrutiny, either directly
 or indirectly, is also already “tainted” by Korematsu and Hirabayashi, whether it cites
 them or not]. To track down all of Korematsu’s or Hirabayashi actual if sometimes indirect
 impacts on the law since the mid-1940s would require a vast, unwieldy forensic
 precedential dragnet—monumentally difficult if not absurd in theory, and impossible in
 actual practice. It is impossible to clean them entirely out of the system, even if we
 wanted to. That garbage got in, and there’s effectively no way of getting it out.
           Thus, even if Korematsu and Hirabayashi are officially cast out as pariahs, their
 numerous precedential progeny will remain alive and well, and various legal language or
 principles originating in or advanced by the two cases likely will remain in active
 circulation—whether “right” or “wrong”.
           Perhaps all these theoretical complications do not really matter in practice. But
 if in fact they don’t matter, that raises further doubts about whether the doctrines of
 precedent and stare decisis really matter, either.
           Which leads to the standard ultimate question for any normal law journal article:
 “OK—so what do we do now?”


280
    In Australia, another common law nation, the national constitution is different and primarily concerned
    only with the overall structure of Australia’s federal government rather than particular enumerated rights,
    while Australian judges reportedly offer their decisions in cases with factual and legal reasons, but more
    briefly and without all the obsessive precedential baggage found in American court opinions. Australian
    courts thus handle precedent and stare decisis rather differently from American ones. Political power in
    Australia also remains more focused in the legislative branch, and less so in a judicial super-legislature—
    as was also the intent and expectation of the Framers of the United States Constitution for the new
    American nation centuries ago. With its reduced obsession over judicial precedent, as well as parliamentary
    supremacy, Australian judicial practice notably is more like judicial practice throughout the global majority
    of nations that are civil law jurisdictions.
281
    This inexorable process of precedential sedimentation in the common law might be thought of as
    “precedent-laundering”, perhaps generally more innocent than but still analogous to money-laundering
    (passing of tainted assets through the hands of various different holding institutions to help hide
    their suspect origins in organized crime or similarly unlawful sources). Again, regarding precedential
    sedimentation in general, see, e.g., Dewey, The Case of the Missing Holding, supra note 16.


                                                       365
                                 THE BANALITY OF EVIL ?


The present study already has revealed itself as not a normal law journal article, being
both insufficiently practical or useful, as well as much too long.
Yet at least in theory, pointing out recurring problems and arguable misfirings in the
transmission of legal rules, principles, and precedents within America’s common law
system, should help aid the possibility of discovering better ways to rein in these
processes, and so perhaps make the law more truly stable and reliable, and less of a
political football or badminton birdie.
        Yet a review of the history cautions that, although we might keep our fingers
crossed regarding such beneficial reforms, we would probably best not hold our breath.




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