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.