The Supreme Court upheld the latest version of President Donald Trump’s travel ban on Tuesday. But as it did so, the Court also took the opportunity to expressly reject a ruling from the 1940s — Korematsu v. United States — that allowed the US government to put Japanese Americans in internment camps during World War II.
The Court wrote, in an opinion by Chief Justice John Roberts:
Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this 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. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
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.” 323 U. S., at 248 (Jackson, J., dissenting).
Korematsu was decided in 1944 after Fred Korematsu, a Japanese-American man in San Leandro, California, refused to relocate to an internment camp. US officials arrested him for the refusal, and he was convicted for the violation. He eventually fought his conviction all the way up to the US Supreme Court — but the Court, in 1944, ruled that Korematsu was in the wrong and the US acted lawfully in attempting to intern not just him but other Japanese Americans.
In practice, Tuesday’s rejection doesn’t mean much — the US, after all, is not interning Japanese Americans anymore.
It might, however, be of limited legal value. Erwin Chemerinsky, the dean of UC Berkeley Law, said that the Korematsu portion of the ruling “is not necessary to the result, so I would not say it is a holding of the case. But that said, it is a clear rejection of Korematsu.” He added, “A holding is something necessary to the result in the case. The discussion of Korematsu is not that. But it does express the Court’s views and would matter in the future.”
Jamal Greene, a law professor at Columbia, concurred: “Here, it is not necessary to the Court’s holding, and so any distancing is ‘dicta’” — opinions that go beyond the current issue before the Court. “Dicta can have important symbolic and persuasive value, but it is not the law and does not bind lower courts.”
But not everyone agrees. “I’d say this overturns Korematsu,” Sam Erman, a law professor at USC, told me. “I think the only reason they don’t say ‘hereby overturned’ is that doing so might suggest that it had been binding precedent up until now. I read the language as an unambiguous rejection of Korematsu.”
Legal scholars and advocates have been calling on the Supreme Court to reject Korematsu and apologize for the 1944 ruling for decades. At the very least, a majority of the Court was clear that it does not stand by Korematsu and views the decision as clearly unconstitutional.
While Roberts seems bothered by comparisons between the travel ban and Korematsu — calling the comparison “wholly inapt.” The comparison was actually made by none other than Trump himself.
Back when Trump’s travel ban was explicitly a proposal to ban all Muslims from entering the US, Trump told Good Morning America, “What I’m doing is no different than FDR.” He went on to cite multiple executive orders by President Franklin Delano Roosevelt, “one of the most highly respected presidents,” that enacted the internment of Japanese Americans.