The US Supreme Court Case Korematsu (1944) ruled that the internment of American citizens of Japanese ancestry was legal out of concern for national security. This case is now generally regarded as a mistake, even though it has never been revisited or overturned.

Short of a new case involving the mass incarceration of another group of citizens based on their national origin, is there a legal means to have the precedent re-visited and overturned? Are we effectively stuck with this decision remaining as case law that can be cited?


The decision is not “on the books”: case law is not statute law.

The precedent stays and remains binding unless and until a case arises where the SCOTUS reverses it or Congress writes a law that bans mass incarceration. Assuming the underlying law on which the decision rested is still in existence and enforced of course.

The primary purpose of the judicial arm of government is not to interpret laws or set precedents; it is to decide disputes. Interpreting law and setting precedent is incidental to that primary purpose. Absent a dispute, the judiciary does not get engaged.

Given that the general consensus of legal opinion (what might be called the vibe) is that the precedent would be reversed it is unlikely that the administrative branch would rely on the precedent. Therefore they wouldn’t mass incarcerate and no dispute will arise.

  • 2
    A statute wouldn't overturn Korematsu, it would just provide more protections that the constitution requires. The US AG could issue an opinion claiming that Korematsu is no longer good law which would bind the U.S. government, but that could be overturned by a later AG. And, if the US doesn't repeat Korematsu, there might never be a chance to litigate it to overturn the precedent. A constitutional amendment could overrule Korematsu, however. – ohwilleke Jan 4 '18 at 23:47
  • @ohwilleke does the court's opinion in Hawaii v. Trump actually overturn the precedent as many are saying? The issues decided in the cases do not seem particularly similar; it just seems that the court has repudiated Korematsu "by the way." – phoog Jun 27 '18 at 15:28
  • 1
    @phoog Korematu is for all practical purposes no longer good law, even if the holding is arguably dicta. Exactly why Hawaii v. Trump is not Korematu, i.e. which distinction is the one that matters, still isn't entirely clear. – ohwilleke Jun 27 '18 at 21:56

On June 26, 2018, the Supreme Court effectively overturned Korematsu by issuing a majority decision on another case[1].

Chief Justice Roberts wrote in the decision of Hawaii v. Trump:
(commonly known as the Third Travel Ban)

“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,”

This is now a majority decision, more recent than Korematsu, which can be cited in future cases.

1 https://www.nytimes.com/2018/06/26/us/korematsu-supreme-court-ruling.html

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.