The Supreme Court’s 1944 decision in Korematsu v. United States was a disaster.
Justice Antonin Scalia has ranked Korematsu alongside Dred Scott, the 1857 decision that black slaves were property and not citizens, as among the court’s most shameful blunders. Justice Stephen G. Breyer has written that Korematsu has lost all potency as precedent.
But Korematsu has never been overruled.
Calls for the Supreme Court to renounce the ruling started almost immediately after it was issued, and have persisted for 70 years. The jurisprudential problem for the court is that it needs a proper setting in which to overrule a decision. It rules on live controversies, and the mass detention of citizens has not arisen again.
The failure to make a definitive statement may also reflect a lack of judicial creativity. The court can say what it likes about its earlier rulings, and it would cost nothing but ink to say something about Korematsu.
The court will soon have a chance to do that in a case concerning a 2012 federal law that authorized the military detention without trial of people accused of providing support to terrorist organizations. The law left in place “existing law or authorities relating to the detention of United States citizens.” That would seem to include the Korematsu decision.
In urging the Supreme Court to hear their case, Hedges v. Obama, the plaintiffs challenging the law asked the justices to consider whether Korematsu should be overruled.
The new case is hardly an ideal vehicle.
But Peter H. Irons, a lawyer who discovered evidence of government misconduct in the Korematsu case and later helped its namesake, Fred Korematsu, wipe out his conviction for remaining in a restricted military area, said the new case represents an opportunity.
He and other lawyers recently wrote to Solicitor General Donald B. Verrilli Jr. to ask him to join the plaintiffs in asking that Korematsu be overruled. They reminded Verrilli that his predecessor, Acting Solicitor General Neal Kumar Katyal, had in 2011 issued a “confession of error” for the actions of government lawyers in the Korematsu case. Those lawyers, over the protests of underlings, had twisted and withheld evidence from the Supreme Court.
Katyal spoke for the executive branch. Congress has also Congress has already addressed the matter. In 1982, a congressional commission concluded that the internment of Japanese-Americans was “a grave injustice” animated by “race prejudice, war hysteria and a failure of political leadership.” It added that “the decision in Korematsu lies overruled in the court of history.”
“The Supreme Court is the last branch of government to formally apologize and renounce this,” Irons said. He said the Hedges case could provide an opportunity even if the court declined to hear it, as it is not unusual for justices to append statements to orders denying review. “It would be a very symbolic gesture on the court’s part, especially if it is joined by a majority of the justices,” Irons said of such a statement.
In his dissent in the 1944 Korematsu decision, Justice Robert H. Jackson wrote that the Supreme Court “for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.”
“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,” he added.
Most lawyers and scholars think the weapon has long been disarmed as a practical matter. But the view is not universal.
“What will we say after another terrorist attack?” Bruce Ackerman, a professor of law at Yale, asked in a 2004 essay. “More precisely, what will the Supreme Court say if Arab-Americans are herded into concentration camps? Are we certain any longer that the wartime precedent of Korematsu will not be extended to the ‘war on terrorism’?”
There are ways for the Supreme Court to answer those questions. It is one thing to disarm a weapon, and another to destroy it.
Adam Liptak is Supreme Court correspondent for The New York Times.
