Did the Supreme Court Just Overrule Korematsu?

The Supreme Court upheld Trump's travel ban this morning.  From the Wall Street Journal:

The court, in a 5-4 opinion by Chief Justice John Roberts, said Tuesday that Mr. Trump didn’t violate the law last September when he put in place restrictions on U.S. entry by people from Iran, Libya, Somalia, Syria and Yemen, a measure he said was necessary to protect national security because those countries don’t provide sufficient information for U.S. officials to assess whether their nationals are a threat. It was his third version of the much-debated ban, earlier iterations of which had been struck down in various parts by the courts. 

Chief Justice Roberts wrote that U.S. immigration law clearly gives the president “broad discretion to suspend the entry of aliens into the United States.” He added, “The president lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”

I am too busy to look into the ruling in depth, and commentators will be dissecting it for days and weeks to come.

But I have seen debate on Twitter as to whether the Court overruled Korematsu v. United States -- a decision that affirmed the United States government's relocation of citizens of Japanese dissent to internment camps during World War II.  I have previously blogged about how Korematsu has been treated as precedent in subsequent cases.

Today's ruling included strong language regarding the case:

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).

Some commentators think that this means Korematsu no longer has precedential value and has been overruled:

OK, Westlaw. Time to hang a red flag on Korematsu. https://t.co/EfjaZxIRwt

— John Elwood (@johnpelwood) June 26, 2018

But others disagree:

Guys, Korematsu was not "overruled" today. Saying it "has been overruled in the court of history" is a clever way of making it sound like you've overruled it, but the question wasn't presented and no overruling actually occurred. Disavowed maybe, but not overruled. #SCOTUS

— Jason P. Steed (@5thCircAppeals) June 26, 2018

On the "court of history" issue, it's worth noting that the Court has only once referred to the "court of history" (distinct from "courts of history"). From New York Times Co. v. Sullivan:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). (emphasis added).

As the only prior use of this term was to distinguish an issue that the Court had never directly addressed, I see Jason Steed's point. But the Court also notes that the decision "has not place in law under the Constitution," which may be a strong way of stating that the case is overruled. Unfortunately, the Court's effort "to be clear," did not include the explicit statement that Korematsu was, in fact, overruled by the Supreme Court, and in light of the imprecise language (and Steed's further point that the Court also stated that Korematsu "has nothing to do with this case"), the debate over Korematsu's precedential status may continue.

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Is Korematsu a Precedent?

Noah Feldman argues it is not in this editorial at the New York Times. Feldman writes:

The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently. 

Justice Anthony M. Kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, Lawrence v. Texas. Overturning Bowers v. Hardwick, which had held that a state could criminalize homosexual sex, Justice Kennedy wrote that “Bowers was not correct when it was decided, and it is not correct today.” This formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the Bowers decision even before the court realized its error and reversed. 

. . .

The legal problems ran even deeper. In his opinion for the court in Korematsu, Justice Hugo Black said that it would be easy to rule against the government if the case had involved “the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.” But he improbably insisted that there was no racial discrimination against interned Japanese-Americans because security, not prejudice, motivated the military to order the internments. 

Furthermore, the Supreme Court’s deference to executive judgment on the domestic front in order to overcome the equal protection guarantee of the 14th Amendment would now be almost unthinkable. Under current doctrine, a court would have to give such a government action 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. 

. . . 

As a predictive matter, the Supreme Court is extremely unlikely to rely on Korematsu. It has been widely disparaged by courts and scholars. Congress repudiated it directly in the Civil Liberties Act of 1988, which paid reparations to detainees, and in the Non-Detention Act of 1971, which prohibits the detention of citizens without trial. When Justice Stephen G. Breyer described the Korematsu decision in his recent book as “discredited,” he wasn’t going out on a limb, but reflecting a legal consensus.

The full opinion in Korematsu v. United States is here.

While Feldman does a thorough job surveying how Korematsu has been repudiated by legal commentators, Congress, and judges, I disagree with his claim that Korematsu is not a precedent.

Feldman notes that a case like Korematsu would be unlikely to arise today because "a court would have to give such a government action the highest degree of scrutiny."  While Feldman claims that Korematsu did not involve this close scrutiny, this is incorrect. In Korematsu, the Court claimed that it was applying "the most rigid scrutiny" in evaluating the constitutionality of a policy that curtailed the rights of a single racial group, and noted that "[p]ressing public necessity may sometimes justify the use of such restrictions." Korematsu has been cited repeatedly as the origin of the "strict scrutiny" test for constitutionality -- the most stringent test a law must pass.

Which leads to the clearest problem with Feldman's overall claim that Korematsu is not precedent: the Supreme Court has repeatedly cited Korematsu as precedent. Dean Hashimoto thoroughly discusses Korematsu's treatment as precedent in this article. The Court has cited Korematsu in support of statements like:

• "Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect." Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
• "At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,'" Loving v. Virginia (!), 388 U.S. 1, 11 (1967)
• "But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications "constitutionally suspect," Bolling v. Sharpe, 347 U. S. 497, 499; and subject to the "most rigid scrutiny," Korematsu v. United States, 323 U. S. 214, 216; and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U. S. 81, 100. McLauglin v. Florida, 379 U.S. 184, 191-192 (1967)

Feldman may reply that these citations are to a basic principle that happened to originate in Korematsu, and that even if the opinion were explicitly overruled it could still be cited in a similar manner. Moreover, despite the shock of seeing such a loathsome case cited in landmark cases like Loving, there is a bit of an ironic joy in seeing the ugly case of Korematsu used for the laudable purpose of striking down discriminatory laws.

These points still do not change the fact that no matter how much commentators may protest, the Court itself has repeatedly cited Korematsu in support of its claims. Moreover, the Court has found need to distinguish cases from Korematsu (see, e.g., Kent v. Dulles, 357 U.S. 116 (1958)). While the Court did not rely on Korematsu in Dulles, by distinguishing Korematsu, the Court tacitly granted Korematsu legitimacy as a precedent worthy of note.

Ultimately, while it is unlikely that the present Court would rely on Korematsu to support something as loathsome as internment, the case remains a precedent. Justice Jackson warned us as much in his dissent -- which I wrote about here. Taking such a view of Korematsu should not be confused with granting the case any measure of respect or legitimacy. As Hashimoto writes in the conclusion of his article:

In declaring Korematsu to be living precedent, I recognize that my view is at odds with the position taken thus far by leaders of the Japanese American community. I understand their wishes and desires to declare Korematsu dead, especially after the successes of the restitution movement and the coram nobis litigations. But I fear that there is a great danger in forgetting what should not be forgotten. I believe that it is safer to be honest and recognize Korematsu's continued perpetuation as doctrine than to prematurely declare the conclusion of a noble cause. Korematsu's persistance, as legal precedent and as a memory of the internment itself, must serve to remind us to be vigilant in protecting our civil liberties.

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Trump's Presidency and the Supreme Court

Cass Sunstein has this interesting article at Bloomberg View. Sunstein begins by correctly noting that even though Trump will appoint Justice Scalia's successor, this will leave the Court's current ideological balance unchanged. Sunstein then addresses the possibility of Trump replacing one or more of the Court's liberal justices (he mentions Justices Ginsburg and Breyer -- I would add Justice Kennedy in light of his role in recent gay rights and abortion decisions). On that topic, Sunstein writes:

Suppose, though, that one of them does resign. At that point, significant changes would be possible. But probably not many. 

One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court's previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal of course, defeating widespread expectations, would make the law seem both unstable and awkwardly political. 

Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing something so dramatic. 

Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority. They aren’t going to turn on a dime merely because the president is a Republican. 

There is a more general point. Many judges (and Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases. Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories.

I agree with portions of Sunstein's analysis. Sunstein's point on respecting precedent is a good one, and is bolstered in the abortion context by the Court's 2016 decision in Whole Woman's Health v. Hellerstedt, a 5-3 decision striking down Texas laws restricting abortion. While two Trump appointees would likely leave the balance of the Court opposed to the Whole Woman's Health decision, a change of course this soon after the Court's ruling would indeed appear dramatically political.

This point about precedent may not hold up in the context of affirmative action, however. The most recent Fisher v. University of Texas case that upheld the University of Texas's affirmative action program was a 4-3 decision, and therefore rested on the opinion of a minority of the nine justices that typically sit at the Supreme Court. Commentators are quick to point out that Justice Kennedy authored the opinion and that Justice Kagan, who was recused, would have brought the majority's total to five justices. But these observations do not affect the fact that the majority consisted of only four justices. Should the Court revisit affirmative action with two Trump appointees replacing any one of Justices Ginsburg, Kennedy, or Breyer, the Court may likely to overrule its prior 4-3 decision with a new 5-4 decision restricting affirmative action.

As for Sunstein's point about incremental change, while he may well be correct, this will probably do little to appease those who wished to see a liberal shift in the Supreme Court. Even if the Court takes the minimalist approach that Sunstein describes, the incremental shifts will likely be to the right, rather than the substantial shifts to the left that liberals were hoping to see under a Clinton presidency.

Finally, to take a brief step into the uncertain and unpleasant world of political prognostication, many commentators expect that Trump will have the opportunity to replace Justice Ginsburg in addition to appointing Justice Scalia's successor, as she is now 83 years old and is unlikely to remain on the Court for four more years. Democrats, however, will likely begin to operate under a time frame of two, rather than four, years as Trump's presidency begins and as his Court begins to take shape. If Democrats manage to mobilize in 2020, they may take back the Senate. Once they have done so, they may well adopt the Republican tactic of refusing a hearing should any seats open up on the Supreme Court. While such an approach would represent a reversal of position for Democrat's who condemned Senate Republicans' refusal over the past many months, they would likely accept this inconsistency in favor of the influence that such a refusal could have on the Court.

I do not like the approach I described above -- whether it is practiced by Republicans or Democrats. But 2016 ushered in a new level of political combat over Supreme Court appointments, and I do not expect these political precedents to be overturned anytime soon.

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