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:
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: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
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.