In Chief Justice John Roberts’s 5-4 opinion in
Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of
Koremtasu v. United States.
Korematsu, of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional
anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in
Trump v. Hawaii, Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling
Korematsu.”
However, especially in the context of a decision validating a policy https://www.acslaw.org/acsblog/religious-liberty-for-a-few-the-supreme-court%E2%80%99s-decision-in-trump-v-hawaii, there is little to find “laudable” in Roberts’s self-serving discussion of
Korematsu. Clearly, Roberts saw “rhetorical advantage” (to borrow his own phrase) in characterizing
Korematsu as affirming the deprivation of Japanese Americans’ liberty “solely and explicitly on the basis of race” and then proceeding to forcefully denounce the decision. But the Court deserves very little credit for the manner in which it has sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to “overrule”
Korematsu.
In fact, a careful reading of both
Trump v. Hawaii and
Korematsu demonstrates that the Court has overruled precisely nothing. For one thing, on Roberts’s own terms the passage discussing
Korematsu is entirely dicta. It is revealing for the Court to protest so loudly that
Korematsu “has nothing to do with this case,” but in the next breath to proclaim, just as loudly, that it was thereby overruling that ostensibly irrelevant precedent.
More fundamentally, however, Roberts provides an incorrect and misleading account of
Korematsu itself—which means that the decision he purports to “overrule” is not quite the one that the
Korematsu Court itself actually rendered. Roberts’s opinion characterizes
Korematsu as holding that “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race” is constitutional. While that formulation operates effectively to make
Korematsu seem more distant from
Trump v. Hawaii than it actually is, it incorrectly describes what
Korematsu actually purported to decide and fails to adequately grapple with the decision’s flaws.
