In today’s Supreme Court divided decision on the Trump administration’s travel ban, two Justices went where the bench seldom goes: the controversial World War II Korematsu case that upheld wartime internment camps.
The Korematsu v. U.S. decision from 1944 centered on the ability of the military, in times of war, to exclude and intern minority groups. That Court ruled in a 6 to 3 vote that the federal government had the power to arrest and intern Fred Korematsu under Presidential Executive Order 9066 on February 19, 1942 by President Franklin D. Roosevelt. He issued the order after fears generated by the Japanese Pearl Harbor attack made the safety of America’s West Coast a priority. Roosevelt directed the military to isolate any citizen, if needed, from a 60-mile-wide coastal area from Washington state to California and extending inland into southern Arizona.
The executive order didn’t specify Japanese-Americans as a group, but the U.S. military detained about 120,000 people during the war. About two-thirds of them were Japanese-Americans who were born in the United States. People of Italian and German heritage were also detained.
While Supreme Court Justices have talked about Korematsu in media interviews and public appearances, it is rare for the case to be mentioned at length in a Supreme Court decision. And on Tuesday, Chief Justice John Roberts made it clear how the five Justice majority in Trump v. Hawaii viewed Korematsu in the canon of Supreme Court decisions.
Roberts strongly objected to Justice Sonia Sotomayor’s comparison of his decision to Hugo Black’s majority 6-3 decision in Korematsu. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” Roberts said.
He then goes on to offer the most-powerful rebuke of Korematsu at the Supreme Court since Robert Jackson, Owen Roberts, and Frank Murphy dissented in the original case.
“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. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission,” Roberts argues.
“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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,” Roberts says, quoting Justice Jackson’s 1944 dissent.
In her own dissent, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) considered Roberts’ comments as proof positive the Court has finally overturned Korematsu. “Today, the Court takes the important step of finally overruling Korematsu, denouncing it as ‘gravely wrong the day it was decided.’ This formal repudiation of a shameful precedent is laudable and long overdue,” Sotomayor said.
But can the Korematsu decision be overruled without a specific case about it appearing at the Court?
We asked our long-time friend and contributor Lyle Denniston, who has covered the Supreme Court since the late 1950s, for a ruling.
“While two dissenting Justices praised the Court for ‘finally overruling’ that 1944 precedent, the majority did not actually do so, for several reasons,” Denniston said. “First, there was no request by the parties in the case to do that in this case so that was not an issue before the Justices; second, the language of an explicit overruling was not used; third, the majority said that the ruling ‘has been overruled by history’—which is not the same as an actual overturning of the precedent. The majority's negative sentiments about it are what judges and lawyers call ‘dicta’—statements made in a court opinion that do not affect the actual outcome.”
Dicta, however, can be understood to be powerful statements on their own. Two examples from the Court are the famous “Footnote Four” from the Carolene Products decision (about the Court’s rationale for declaring laws unconstitutional) and statements about the Alien and Sedition Acts in New York Times v. Sullivan.
Prior Justices haven’t been bashful about criticizing Korematsu. The late Antonin Scalia cited Justice Robert Jackson’s dissent as his favorite Supreme Court opinion of all time. Scalia said in 2014 he admired Jackson’s opinion for its writing style and for the fact that “it was nice to know that at least somebody on the court realized that that was wrong.”
About a year later, Justice Stephen Breyer told ABC News on Sunday he didn’t see mass internment of ethnic groups in the nation’s future, in a reference to Korematsu. “This country has developed a stronger tradition of civil liberties,” Breyer said about Korematsu’s legacy. “I think everyone I've ever run into thinks that case was wrongly decided.”
Although in 1983 federal courts overturned Korematsu’s original convictions, the Supreme Court never has had an opportunity to overturn the 1944 decision in an official way. Today’s statements by Roberts and Sotomayor may be the closest the Court will ever come to doing that in the near future.
Scott Bomboy is the editor in chief of the National Constitution Center.