Did the Roberts Court Overrule Korematsu in Trump v Hawaii (2018)?
Chief Justice John Roberts
What did Roberts, in this opinion for the Court, in Trump v Hawaii say about Korematsu?
In her dissent, Justice Sonia Sotomayor’s compared The Court's decision in Trump v Hawaii (a case challenging the Trumps Administrations ban on travel into the United States by nationals of mostly Muslim countries) to the majority decision in Korematsu. “Roberts objected to the comparison: "Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” Roberts, writing for the Court, says, “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. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” Roberts goes further, denouncing the Korematsu decision in strong terms: “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.”
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, applaud in their dissent what they consider the overturning of Korematsu:“Today, the Court takes the important step of finally overruling Korematsu, denouncing it as ‘gravely wrong the day it was decided.’ This formal repudiation of a shameful precedent is laudable and long overdue.”
So did the Court overrule Korematsu?
Roberts said Korematsu was wrongly decided and "has been overruled in the court of history." But the "court of history" isn't the same thing as the Supreme Court. Lawyers--some more than others--like to play the "dicta/holding" game. That is, they like to distinguish between language in a court's opinion that isn't essential to reaching its holding (dicta) and language that is. Dicta can be a very strong predictor of how a court might rule in a future case. What Roberts said, for example, leaves little doubt as to how his Court would rule if a case very close in its facts to Korematsu were to come up. If Muslim-Americans were to be excluded from designated portions of the country, then held for transportation to relocation centers, one could be very confident this Court would then, as it would clearly have to do, explicitly overrule Korematsu and find the government's actions to violate the rights of a Muslim-American who had standing to challenge the law.
Trump v Hawaii was sufficiently distinguishable on its facts from Korematsu that Justice Roberts found Justice Sotomayor's reference to it to be beside the point. So what he said about Korematsu was dicta, and therefore somewhat less authoritative than it would otherwise be. But the words of the Chief Justice clearly show what he and the Court think about Korematsu. Any lawyer in a case before the Supreme Court who were to cite Korematsu as authority for his or her argument would be a foolish lawyer indeed. For all practical purposes, Korematsu is dead.
By the way, many other prior justices have criticiized Korematsu, even one like Justice Douglas who was in the majority in that case. Antonin Scalia called Justice Robert Jackson’s dissent in Korematsu his favorite Supreme Court opinion of all time, adding “It was nice to know that at least somebody on the Court realized that that was wrong.”