UNITED STATES COURT OF APPEALS
For the Ninth Circuit
No. 24-3891
BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONERS
I. INTRODUCTION
The equal protection guarantee of the Fourteenth Amendment is among the most consequential provisions in American constitutional law. It has served as the foundation for dismantling state-sponsored discrimination based on race, national origin, and ethnicity. The history of this guarantee, however, includes a dark chapter in which the Supreme Court sanctioned one of the most egregious violations of civil liberties in the nation's history. In Korematsu v. United States, 323 U.S. 214 (1944), the Court upheld the forced internment of over 120,000 Japanese Americans during World War II — a decision now universally condemned and formally overruled.
II. THE STRICT SCRUTINY FRAMEWORK FOR RACIAL CLASSIFICATIONS
The foundational principle of equal protection is that all persons, regardless of race, are entitled to the same treatment under law. As the Court recognized in Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Fourteenth Amendment is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to any differences of race." This principle was given its fullest expression in Brown v. Board of Education, 347 U.S. 483 (1954), which held that racial segregation in public schools violated equal protection, and in Loving v. Virginia, 388 U.S. 1 (1967), which struck down anti-miscegenation statutes and confirmed that racial classifications are subject to "the most rigid scrutiny."
III. THE LIMITS OF GOVERNMENT POWER IN WARTIME
The government has at times argued that national security exigencies justify racial classifications. The Court addressed a companion case in Hirabayashi v. United States, 320 U.S. 81 (1943), upholding a curfew order applicable only to persons of Japanese ancestry. But the modern Court has made clear that strict scrutiny applies to all racial classifications, whether imposed by federal or state actors. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny").
IV. KOREMATSU IS NO LONGER GOOD LAW
The Supreme Court has now formally repudiated Korematsu. In Trump v. Hawaii, 585 U.S. 667 (2018), Chief Justice Roberts wrote for the majority: "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution." The dissent in Korematsu, 323 U.S. at 233 (Murphy, J., dissenting), which described the internment as falling "into the ugly abyss of racism," has been vindicated by history. Similarly, the reasoning of Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld "separate but equal" racial segregation, was overruled by Brown and stands alongside Korematsu as a cautionary example of judicial deference to government-sanctioned racial discrimination.
V. CONCLUSION
For the foregoing reasons, amici respectfully urge the Court to apply strict scrutiny to any governmental action that classifies individuals on the basis of race or national origin. The lessons of Korematsu and Plessy are clear: no exigency justifies the abandonment of equal protection.