Hirabayashi v. United States

In the years following this decision, the Supreme Court often defined the constitutionality of racial classifications using this important case and two similar others of the time. Yet since then, as Reggie Oh and Frank Wu stated in The Evolution of Race in the Law, the three cases have also been roundly criticized for "being emphatically based upon acquiescence to racism."

These three cases made history again 40 years after they were first decided. In 1983 lawyers for Gordon Hirabayashi and the two other men, Fred Korematsu and Minoru Yasui, filed petitions asking federal judges to vacate, meaning to rescind or set aside, their wartime convictions. Never before had convictions which had been decided by the U.S. Supreme Court been challenged in such a manner. The petitions were grounded on an obscure federal procedure called a writ of error coram nobis, meaning they were asking the original trial court to correct a fundamental error and injustice which occurred at the original trial.

According to Peter Irons in Justice Delayed: The Record of the Japanese Internment Cases, this error was the government's in that in 1943 it did not acknowledge a lack of evidence. It had since been discovered that General DeWitt was in fact informed that there was no proof of "acts of sabotage and espionage by Japanese Americans [which] required curfew and evacuation, and no evidence that Japanese Americans were disloyal." Since this evidence had been withheld, the Court's convictions were based on error. During Hirabayashi's hearing in June of 1985, witnesses testified to the suppression of a report which said the military's contention that there was insufficient time to conduct individual loyalty hearings was untrue because there was no way to determine loyalty.

This suppression of evidence was found to have limited the arguments that Hirabayashi's lawyers could have made in 1943 to counter the government's claims of "military necessity." Thus the Court concluded that the original conviction was based on "an error of the most fundamental character," and one of Hirabayashi's convictions was vacated. In September of 1987 the U.S. Court of Appeals for the Ninth Circuit also vacated the other conviction against Hirabayashi.