WASHINGTON — The Supreme Court’s 1944 decision in Korematsu v. United States was a disaster. In endorsing an executive order that required 110,000 Americans of Japanese ancestry to be removed from their homes and confined in detention camps, the court relied on wartime hysteria streaked with racism, sullying its reputation and damaging the constitutional principles it was meant to uphold.
Justice Antonin Scalia has ranked Korematsu alongside Dred Scott, the 1857 decision that black slaves were property and not citizens, as among the court’s most shameful blunders.
Justice Stephen G. Breyer has written that Korematsu has lost all potency as precedent. “The decision has been so thoroughly discredited,” he wrote in a recent book, “that it is hard to conceive of any future court referring to it favorably or relying on it.”
But Korematsu has never been overruled.
Calls for the Supreme Court to renounce the ruling started almost immediately after it was issued, and have persisted for 70 years. “Public expiation in the case of the internment of Japanese Americans from the West Coast would be good for the court, and for the country,” Eugene V. Rostow wrote in 1945 in The Yale Law Journal.
The jurisprudential problem for the court is that it needs a proper setting in which to overrule a decision. It rules on live controversies, and the mass detention of citizens has not arisen again.
The failure to make a definitive statement may also reflect a lack of judicial creativity. The court can say what it likes about its earlier rulings, and it would cost nothing but ink to say something about Korematsu.
The court will soon have a chance to do that in a case concerning a 2012 federal law that authorized the military detention without trial of people accused of providing support to terrorist organizations. The law left in place “existing law or authorities relating to the detention of United States citizens.” That would seem to include the Korematsu decision.
In urging the Supreme Court to hear their case, Hedges v. Obama, No. 13-758, the plaintiffs challenging the law asked the justices to consider whether Korematsu should be overruled.
The new case is hardly an ideal vehicle. The federal appeals court in New York dismissed it, saying that the plaintiffs had not suffered the sort of injury that gave them standing to sue, and it said nothing about Korematsu. Solicitor General Donald B. Verrilli Jr. will presumably oppose a Supreme Court review on the grounds that the appeals court’s ruling on standing was correct.
But Peter H. Irons, a lawyer who discovered evidence of government misconduct in the Korematsu case and later helped its namesake, Fred Korematsu, wipe out his conviction, for remaining in a restricted military area, said the new case represents an opportunity.
He and other lawyers recently wrote to Mr. Verrilli to ask him to join the plaintiffs in asking that Korematsu be overruled. They reminded Mr. Verrilli that his predecessor, Acting Solicitor General Neal Kumar Katyal, had in 2011 issued a “confession of error” for the actions of government lawyers in the Korematsu case. Those lawyers, over the protests of underlings, had twisted and withheld evidence from the Supreme Court.
Mr. Katyal spoke for the executive branch. Congress has also addressed the matter.
In 1982, a congressional commission concluded that the internment of Japanese-Americans was “a grave injustice” animated by “race prejudice, war hysteria and a failure of political leadership.” It added that “the decision in Korematsu lies overruled in the court of history.”