the supreme court<u+2019>s infamous 1944 japanese internment decision, korematsu v. united states , has never been overturned. but does that mean, as some of donald j. trump<u+2019>s associates have recently implied, that it is still good law, a precedent that could be cited in support of a national registry for muslim immigrants or other morally repugnant classification schemes? the ultimate answer is no <u+2014> but the no is not a simple one. the legal doctrine of stare decisis holds that precedent ordinarily remains in place until it is overturned. and cases that seemed outdated and disreputable but remained on the books have sometimes recurred in the court<u+2019>s jurisprudence, particularly after the sept. 11 attacks. so a moral plea for the government not to treat korematsu as law is not enough. fortunately, there is also a legal argument for why korematsu should not be treated as such. the most straightforward way to reject korematsu is to understand it not as the definitive word on the true meaning of the constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. according to this view, a decision can be wrong at the very moment it was decided <u+2014> and therefore should not be followed subsequently. justice anthony m. kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, lawrence v. texas . overturning bowers v. hardwick , which had held that a state could criminalize homosexual sex, justice kennedy wrote that <u+201c>bowers was not correct when it was decided, and it is not correct today.<u+201d> this formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the bowers decision even before the court realized its error and reversed. it is hard to think of an opinion not yet overturned that has a greater claim to having been wrong when decided than korematsu. barely six months after the decision, in fact, eugene rostow, a law professor who later become the dean of the yale law school and an under secretary of state in the johnson administration, said as much in an essay titled <u+201c>the japanese-american cases: a disaster.<u+201d> the problems with the decision were both factual and legal. on the factual side, the government submitted incomplete and false evidence to the court in claiming military necessity for the internment program, suppressing the fact that allegations of japanese-american espionage had been refuted by the f.b.i. and military intelligence. and the supreme court had been told that military authorities feared an invasion of the west coast, which they in fact did not. the legal problems ran even deeper. in his opinion for the court in korematsu, justice hugo black said that it would be easy to rule against the government if the case had involved <u+201c>the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.<u+201d> but he improbably insisted that there was no racial discrimination against interned japanese-americans because security, not prejudice, motivated the military to order the internments. furthermore, the supreme court<u+2019>s deference to executive judgment on the domestic front in order to overcome the equal protection guarantee of the 14th amendment would now be almost unthinkable. under current doctrine, a court would have to give such a government action the highest degree of scrutiny. to the extent korematsu did not involve this close scrutiny, it has arguably already been overruled sub rosa by the cases that established those scrutiny norms. the strongest argument for treating korematsu as viable precedent is that no matter how wrong a judicial decision is, it remains the law of the land until the court reverses it. but even this <u+201c>formalist<u+201d> view may be tempered by the <u+201c>legal realist<u+201d> idea that the law may be defined as a prediction of what the courts will do. as a predictive matter, the supreme court is extremely unlikely to rely on korematsu. it has been widely disparaged by courts and scholars. congress repudiated it directly in the civil liberties act of 1988, which paid reparations to detainees, and in the non-detention act of 1971, which prohibits the detention of citizens without trial. when justice stephen g. breyer described the korematsu decision in his recent book as <u+201c>discredited,<u+201d> he wasn<u+2019>t going out on a limb, but reflecting a legal consensus. admittedly, bad decisions have been resurrected by the supreme court. in 2004, a doubtful world war ii-era precedent, ex parte quirin, which involved the detention, trial and execution of german saboteurs, was relied on by the supreme court to justify the detention of unlawful combatants. ex parte quirin has now joined the mainstream of legal doctrine despite almost a half-century of neglect and a problematic legal pedigree. but korematsu is different. it has entered what the legal scholar richard primus has called the <u+201c>anti-canon,<u+201d> a body of cases that lawyers treat as exemplars of bad legal decision making. these are cases like plessy v. ferguson, which articulated the <u+201c>separate but equal<u+201d> doctrine. even arch-conservative justices would have to think long and hard before going against this prevailing view. korematsu<u+2019>s uniquely bad legal status means it<u+2019>s not precedent even though it hasn<u+2019>t been overturned. relying on it would be bad constitutional law. correction: november 20, 2016 an earlier version of this article misstated the year korematsu v. united states was decided. it was in 1944, not 1942. noah feldman is a professor of law at harvard and a columnist for bloomberg view. a version of this op-ed appears in print on november 21, 2016, on page a23 of the new york edition with the headline: why korematsu is not a precedent. today's paper | subscribe
why korematsu is not a precedent
noah feldman