page_title: Korematsu v. United States
section_title: 21st century reactions
hierarchical_section_title: Korematsu v. United States / Subsequent history / 21st century reactions
caption_attribution_description: English: Fred Korematsu (1919–2005) – known for challenging internment orders during World War II and then becoming a spokesperson for civil rights
context_page_description: Korematsu v. United States, 323 U.S. 214, was a landmark United States Supreme Court case upholding the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has widely been criticized, with some scholars describing it as "an odious and discredited artifact of popular bigotry" and as "a stain on American jurisprudence". Chief Justice John Roberts wrote in his majority opinion in the 2018 case of Trump v. Hawaii that the Korematsu decision was explicitly repudiated.
  In the aftermath of Imperial Japan's attack on Pearl Harbor, President Franklin D. Roosevelt had issued Executive Order 9066 on February 19, 1942, authorizing the War Department to create military areas from which any or all Americans might be excluded. Subsequently, the Western Defense Command, a United States Army military command charged with coordinating the defense of the West Coast of the United States, ordered "all persons of Japanese ancestry, including aliens and non-aliens" to relocate to internment camps.
context_section_description: Eleven lawyers who had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in successful efforts in lower federal courts to nullify their convictions for violating military curfew and exclusion orders sent a letter dated January 13, 2014, to Solicitor General Donald Verrilli Jr. In light of the appeal proceedings before the U.S. Supreme Court in Hedges v. Obama, the lawyers asked Verrilli to ask the Supreme Court to overrule its decisions in Korematsu, Hirabayashi (1943) and Yasui (1943). If the Solicitor General shouldn't do this, they asked that the United States government to "make clear" that the federal government "does not consider the internment decisions as valid precedent for governmental or military detention of individuals or groups without due process of law [...]."
  On February 3, 2014, Justice Antonin Scalia, during a discussion with law students at the University of Hawaii at Manoa William S. Richardson School of Law, said that "the Supreme Court's Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time." In October 2015 at Santa Clara University, Scalia told law students that Justice Jackson's dissenting opinion in Korematsu was the past court opinion he admired most, adding "It was nice to know that at least somebody on the court realized that that was wrong."
  Donald Trump's Presidential election led Kansas Secretary of State Kris Kobach to advocate for Trump to implement immigration controls like the National Security Entry-Exit Registration System. One Trump supporter, Carl Higbie, said that Jimmy Carter's 1980 restriction on Iranian immigration, as well as the Korematsu decision, gives legal precedent for a registry of immigrants. Critics of Higbie argued that Korematsu should not be referenced as precedent. Constitutional lawyer Bruce Fein argued that the Civil Liberties Act of 1988 granting reparations to the Japanese Americans who were interned amounts to Korematsu having been overturned by history—outside of a potential formal Supreme Court overrule.  Another critic of Higbie described Korematsu as a "stain on American jurisprudence".
  According to Harvard University's Felix Frankfurter Professor of Law Noah Feldman, "a decision can be wrong at the very moment it was decided—and therefore should not be followed subsequently."  Justice Anthony Kennedy applied this approach in Lawrence v. Texas to overturn Bowers v. Hardwick and thereby strike down anti-sodomy laws in 14 states.  The implication is that decisions which are wrong when decided should not be followed even before the Court reverses itself, and Korematsu has probably the greatest claim to being wrong when decided of any case which still stood.  Legal scholar Richard Primus applied the term "Anti-Canon" to cases which are "universally assailed as wrong, immoral, and unconstitutional" and have become exemplars of faulty legal reasoning.  Plessy v. Ferguson is one such example, and Korematsu has joined this group—as Feldman then put it, "Korematsu's uniquely bad legal status means it's not precedent even though it hasn't been overturned."
caption: Fred Korematsu
exif: {}