When SCOTUS makes a mistake


Brown v Board of Education. Roe v Wade. Loving v Virginia. Supreme Court decisions are the final word in constitutional law, protecting the rights of individuals with the same weight as constitutional amendments. Except when they don’t. The actual history of the Supreme Court is the same messy story of case law seen in lower courts, and just as littered with bad decisions.

The incarceration of Japanese-Americans during World War II is almost universally acknowledged to have been a bad idea, rooted more in racism than national security. But human memory is short, and even mistaken legal precedents hold weight. As the anniversary of Korematsu v United States –  the Supreme Court decision that justified the Japanese incarceration – approaches, some people may be trying to repeat history, this time pointing to Muslims, instead of Japanese, as a threat to America’s security.


Most of us have heard of the executive order that authorized the relocation and internment of ethnic Japanese from the West Coast during World War II. It resulted in the incarceration for the duration of the war of roughly 120,000 civilians (nearly two-thirds of whom were citizens born in the U.S.).

Fewer people have heard of Fred Korematsu, the son of Japanese immigrants, who was born and raised in Oakland, California. When all ethnic Japanese were ordered to report to Assembly Centers on May 9, 1942, Korematsu went into hiding. He was caught and convicted of violating the order.

Korematsu v United States

The ACLU of Northern California argued for Korematsu that the internment constituted imprisonment without trial, a breach of due process under the Fifth Amendment. However, the Supreme Court’s decision relied on an earlier case, Hirabayashi v United States, which had unsuccessfully challenged a curfew placed on ethnic Japanese as an unconstitutional delegation of Congressional power. While recognizing that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” the Court upheld Korematsu’s conviction and the Japanese internment “as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage.”

Korematsu Today

Today, legal scholars agree that in upholding Korematsu’s conviction, the Supreme Court erred on both factual and legal points. In the 1980’s, professors at University of California San Diego uncovered proof the government knew that Japanese-Americans did not pose a threat. A new ruling in District Court cleared Korematsu’s conviction.

The legal justifications in Korematsu have been so widely disparaged it is unlikely the Supreme Court would cite it as a precedent in a new case. But the Court’s 1944 ruling still stands, and Korematsu has been referenced in justification of a Muslim registry.

Silicon Valley workers pledged not to build such a registry, but there are those who argue that the infrastructure is already in place.

And in December 2017, the Supreme Court allowed President Donald Trump’s travel ban against mostly Muslim nations to go into effect while legal challenges against it continue. Is the Court willing to support legal restrictions which curtail the civil rights of a single racial group again?