Would Korematsu v. United States Be Decided the Same Way Today?

The Supreme Court upheld the constitutionality of Executive Order 9066, which authorized the forced relocation and internment of Japanese Americans during World War II. The 6-3 majority, led by Justice Black, held that the government's wartime security concerns justified the racial classification, applying a form of heightened scrutiny but ultimately deferring to military judgment. Justices Murphy, Jackson, and Roberts dissented.

Korematsu has been widely regarded as one of the Supreme Court's worst decisions, standing alongside Plessy v. Ferguson and Dred Scott v. Sandford in the anticanon of constitutional law. In 1983, Korematsu's criminal conviction was vacated by a federal district court after evidence emerged that the government had suppressed intelligence reports contradicting its claims of military necessity. In 1988, Congress passed the Civil Liberties Act, formally apologizing for internment and providing reparations to survivors.

The Supreme Court itself formally repudiated Korematsu in Trump v. Hawaii (2018), with Chief Justice Roberts writing that the decision was 'gravely wrong the day it was decided' and 'has been overruled in the court of history.' This explicit disavowal was remarkable given the Court's usual reluctance to formally overrule precedent outside the direct context of a case presenting the same issue.

Post-9/11 national security law has raised new questions about the balance between security and civil liberties, particularly regarding the treatment of Muslim Americans and individuals of Middle Eastern descent. While the legal framework has evolved significantly, concerns about racial and ethnic profiling in the name of national security persist, making the lessons of Korematsu acutely relevant to contemporary debates.

Modern strict scrutiny doctrine would almost certainly doom any attempt to replicate the Japanese American internment. Under current equal protection jurisprudence, a racial classification must serve a compelling governmental interest and be narrowly tailored to achieve that interest. While national security is undoubtedly a compelling interest, the mass incarceration of an entire ethnic group without individualized suspicion of disloyalty would fail the narrow tailoring requirement spectacularly.

The evidentiary record that has emerged since 1944 further undermines any defense of internment. Government reports from the period, including the Ringle Report, concluded that Japanese Americans posed no significant security threat and that individualized screening could adequately address any legitimate concerns. The suppression of this evidence during the original litigation would itself raise serious due process concerns under modern standards of governmental candor in national security cases.

Additionally, the development of procedural due process protections since Korematsu would create substantial barriers to mass detention. The Supreme Court's post-9/11 decisions in Hamdi v. Rumsfeld and Boumediene v. Bush established that even enemy combatants detained during wartime are entitled to meaningful judicial review of their detention. These protections would apply a fortiori to American citizens detained solely on the basis of their ancestry.

The fact that the Court explicitly overruled Korematsu in Trump v. Hawaii, even while upholding the travel ban at issue in that case, demonstrates that no faction on the current Court would defend the internment precedent. The decision has become a cautionary tale about the dangers of judicial deference to the political branches during times of crisis.

Legal scholars have extensively debated whether Korematsu's formal overruling in Trump v. Hawaii was meaningful or merely symbolic. Critics like Jamal Greene have argued that the Court's simultaneous upholding of the travel ban in Trump v. Hawaii replicated Korematsu's core error of excessive deference to executive claims of national security necessity, particularly when those claims target a disfavored minority group. Professor Eric Muller has questioned whether the Court can truly learn from Korematsu while continuing to apply deferential standards to national security measures with discriminatory effects.

Other scholars focus on what Korematsu teaches about the structural conditions that enable constitutional failure. Professor Mark Tushnet has examined how wartime pressures distort judicial reasoning, while Lorraine Bannai's work on the coram nobis proceedings highlights the importance of governmental honesty in national security litigation. The debate ultimately centers on whether formal legal protections can withstand the pressures of genuine crisis or whether Korematsu represents a recurring pattern in American constitutional history.

• Trump v. Hawaii (2018)
• Hamdi v. Rumsfeld (2004)
• Boumediene v. Bush (2008)
• Rasul v. Bush (2004)
• Hedges v. Obama (2013)