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Is Korematsu Really Still Good Law?

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By Casey C. Sullivan, Esq. on November 21, 2016 3:01 PM

A year ago on Sunday, while campaigning in Iowa, Donald Trump said that as president he would "absolutely" implement a registry for Muslims in the United States. He has since denied ever supporting a registry, though his Chief of Staff-in-waiting, Reince Priebus, has refused to rule the possibility out. And just the other day, a Trump surrogate went on TV to argue that such a registry would be perfectly constitutional. His evidence? Japanese internment and the Supreme Court's approval of it in Korematsu.

But Korematsu may not be good law any longer, despite having never been explicitly overturned, according to one Harvard law professor.

"I'm Just Saying There Is Precedent for It"

Speaking to Fox News' Megyn Kelly last week, Carl Higbie, spokesperson for the pro-Trump Great American PAC, repeatedly referenced Japanese internment as precedent for a Muslim registry. "Yeah, and to be perfectly honest, it is legal. They say it will hold constitutional muster," Higbie claimed.

"We did it during World War II with Japanese," he said, before Kelly cut him off, saying "Come on. You're not -- you're not proposing we go back to the days of internment camps, I hope." Of course not, Higbie said, but "I'm just saying there is precedent for it."

That precedent, of course, is Korematsu v. United States, the landmark Supreme Court case that gave us strict scrutiny and Japanese internment. Since it was decided in 1944, Korematsu has repeatedly been labeled as one of the Supreme Court's worst decisions. It was described as "overruled in the court of history" by Congress. Justice Breyer has called it "so thoroughly discredited that it is hard to conceive of any future court referring to it favorably or relying on it."

In the long run, Justice Murphy's Korematsu dissent has come to be the majority view towards Korematsu and internment. Dissenting from "this legalization of racism," Justice Murphy condemned internment as "one of the most sweeping and complete deprivations of constitutional rights in the history of this nation."

Good Law No More?

Except, as many have noted, Korematsu has never been overturned. Does that mean it's still good law? Not according to Harvard Law professor Noah Feldman. In a recent op-ed for the New York Times, Feldman made the case for Korematsu's legal impotence.

"The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution," Feldman writes, "but simply as a moment in historical time in which particular justices applied the law to specific facts." Under that view, Korematsu, like Bowers v. Hardwick, could be met with Justice Kennedy's declaration that the case was "not correct when it was decided, and it is not correct today."

Further, Korematsu wouldn't be able to survive more recent precedent, Feldman argues. The deference seen in Korematsu "would now be almost unthinkable" under contemporary equal protection doctrine, he writes. Today's Court would demand "the highest degree of scrutiny."

"To the extent Korematsu did not involve this close scrutiny, it has arguably already been overruled sub rosa by the cases that established those scrutiny norms."

More practically, though, Feldman argues that Korematsu is virtually meaningless as "a prediction of what the courts will do" -- the whole purpose of precedent. If Korematsu can't realistically be relied upon, then its precedential power is null, despite the doctrine of stare decisis.

"Korematsu's uniquely bad legal status means it's not precedent even though it hasn't been overturned," Feldman concludes. "Relying on it would be bad constitutional law."

Is he right? Hopefully, we'll never need to find out.

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