Korematsu v. US – why it hasn’t been overturned

Korematsu v. United States is one of the landmark cases a law school student will learn about in Constitutional Law. The Supreme Court of the United States (SCOTUS) was decided in 1944 and basically allowed the United States government to relocated United States Citizens to internment camps (Encyclopedia Britannica does a great job at explaining the background). One of the citizens that was ordered to be interned at these camps was named Fred Korematsu and with the help of the ACLU he appealed the order sending him to an internment camp. SCOTUS heard the case, and in the time of World War II (WWII) after Pearl Harbor had been attacked by the Japanese decided it was legal because of the wartime emergency.

As of this writing, in 2020, the SCOTUS ruling on Korematsu has never been formally and officially overturned. In order for a SCOTUS ruling to be overturned there must be another case with similar facts and issues, AND at least one of the parties must ask that Korematsu either be upheld or overturned.

In 2018, there was talk by several news organizations stated that Korematsu was formally overturned, but sadly it was not. The National Constitution Center, does a great job providing details on why it was not overturned in 2018 (and still has not been). Chief Justice Roberts condemned the 1944 ruling in dicta to the opinion, but dicta is not the formal ruling. The reason it made news and some new organizations like the New York Times thought it was formally overturned is that the dissenting opinion in Trump v. Hawaii stated that Chief Justice Roberts formally overturned Korematsu. However, as pointed out with the Wisconsin Supreme Court case post, just because you call something a duck doesn’t make it a duck. In this case, just because a Supreme Court Justice said something was formally overturned did not formally overturn it.

Dicta is a legal term used when a judge or justice makes comments in the opinion that do not impact the actual outcome and ruling. Dicta is often seen when judges write concurring opinions to the ruling or dissenting opinions to the ruling. Sometimes dicta can be very powerful because it can explain why the ruling was decided the way it was and can help set precedent or distinguish the case from other similar cases. However strong dicta may sound or what might be said in dicta.

This was not the first time that SCOTUS mentioned disagreeing with the Korematsu decision in dicta. In 2014, Justice Antonin Scalia pointed out in dicta that the ruling was wrong. However, without a case with a similar factual issue being brought to SCOTUS there will not be a chance to formally overturn this ruling. This lawyer hopes that there is never a chance for SCOTUS to formally overturn this case, because that means that as a society we have not evolved and we are sending innocent citizens to internment camps out of fear for what they might one day do or who they might be associating with.  If the United States did not do that after the events of September 11, 2001 and the COVID-19 pandemic, I feel that the chances of this ever happening are incredibly low.


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