In his Korematsu dissent, Justice Murphy, among other rationales, invoked the 5th Amendment’s equal protection guarantee:
Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment.
Huh? Did Murphy just reverse-incorporate the Equal Protection clause.
This was a decade before Bolling v. Sharpe. Bolling cites Korematsu for the proposition that classifications on race are given strict scrutiny, but it doesn’t cite Jackson’s opinion regarding the Equal Protection applying to the Federal Government.
Had the Supreme Court prior to 1944 held that the 5th Amendment reverse incorporates equal protection? Did Murphy just throw that out there, without any citation, for the first time?
Update: It is Justice Murphy, not Justice Jackson.
Upate 2: David Bernstein addresses this point in his article, Bolling, Equal Protection, Due Process, and Lochnerphobia.
In 1943, in Hirabayashi, the Court stated that “the Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process.” Hirabayashi v. United States, 320 U.S. 81, 100 (1943). However, the Court added that “[d]istinctions 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. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.” Id. Moreover, the Court stated that it “may assume that these considerations would be controlling here were it not for the fact [of] the danger of espionage and sabotage, in time of war and of threatened invasion.” Id. In Korematsu, the Court reiterated that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Korematsu v. United States, 323 U.S. 214, 216 (1944). While the Court did not identify the source of this dictum, given that the case involved the internment of Japanese Americans by the federal government, the logical source would be the Fifth Amendment’s Due Process Clause.
Justice Murphy, who dissented, relied explicitly on the Due Process Clause, but only as to the deprivation of procedural due process, not substantive liberty. Id. at 235 (Murphy, J., dissenting). Thus, it would be logical to interpret the majority’s reference to “civil rights” as the denial of procedural, not substantive rights, and thus an inapt precedent for Bolling’s substantive due process holding. In any event, the Japanese plaintiffs were clearly deprived of their liberty in the internment cases. It is therefore not at all clear that any opinion in these cases invoking equal protection principles relied purely on discovering an equal protection component of due process, as opposed to invoking a principle that deprivations of liberty that involve racial classifications will require a stronger police power (or in these cases, national security) justification than would be required to justify a typical deprivation of liberty by the Federal Government.
As for the three opinions cited by Warren for the general proposition that discrimination can be so egregious as to violate due process, a review of the briefs filed in Bolling reveals that, ironically, these three cases were cited by the defendants in Bolling for the proposition that the Fifth Amendment does not contain an Equal Protection Clause. Brief for Respondents, Bolling v. Sharpe, 1952 WL 47280. In fact, these cases were brought to Warren’s attention by his clerk, Earl Pollock, who cited them in pointing out to him that Bolling required a separate opinion from the other segregation cases, because “the equal protection clause of the 14th Amendment has no direct relevance,” and “the Fifth Amendment has repeatedly been construed by this Court not to impose the same limits on federal discrimination as the 14th Amendment imposes on states discrimination.” Memorandum from Earl Pollock to Chief Justice Earl Warren, May 3, 1954, Earl Warren Papers, Library of Congress, Box 397.
Justice Murphy also argued in a concurring opinion in Steele v. Louisville & Nashville Railroad Co. that a federal law that authorized mandatory collective bargaining, but allowed workers’ representatives to engage in racial discrimination “would bear the stigma of unconstitutionality under the Fifth Amendment in this respect.” 323 U.S. 192, 208 (1944) (Murphy, J., concurring). Murphy did not clearly explain why he believed such a law would violate the Fifth Amendment, beyond to state that the “Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color.” Id. at 209.