In a New York Times op-ed, Harvard law professor Noah Feldman argues that Korematsu v. United States, the notorious 1944 ruling upholding the wartime internment of Japanese-Americans, should not be considered a legal precedent although it has never been formally overruled by the Supreme Court. (Why should the question even arise? Because some people are invested in supposing that a Trump administration might try to round up and intern American Muslims, a highly unlikely prospect.)
Feldman writes that Korematsu is more than morally suspect—it is legally weak:
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 — and therefore should not be followed subsequently.
He goes on to say that this idea of “wrong when decided” was employed by Justice Kennedy in Lawrence v. Texas (2003), when the Court overruled its own precedent in Bowers v. Hardwick (1986). Justice Scalia, dissenting in Lawrence, cogently dismantled Kennedy’s case for overruling the Bowers precedent. But that can be set aside. Whether another example might have suited the purpose better, Feldman’s point that a case can later be overruled for having been “wrong at the very moment it was decided” is surely correct. Most people, myself included, would say that about Korematsu—a case that is even nigh-impossible to square with its companion case of Ex parte Endo, announced the same day in December 1944.
But then Feldman writes this:
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 “The Japanese-American Cases: A Disaster.”
Really? Hard to think of another such “opinion not yet overturned that has a greater claim to having been wrong when decided”? Here’s an easy one: Roe v. Wade. Barely two months after the decision, in fact, John Hart Ely, a law professor who later became the dean of Stanford Law School and one of the most influential legal scholars of his generation, said as much in an essay titled “The Wages of Crying Wolf: A Comment on Roe v. Wade.” (See what I did there?)
Feldman argues very convincingly that Korematsu suffered from fatal flaws both in the putative facts on which it was grounded and in the feeble legal reasoning on which it rested. Such flaws are also—and even more obviously—present in Roe, which pretended there was uncertainty about when human life begins (there isn’t, and there wasn’t in 1973), and which finally rested on the flimsy ipse dixit that the abortion right could be found either in “the Fourteenth Amendment’s concept of personal liberty . . . or . . . in the Ninth Amendment’s reservation of rights to the people,” without any showing of how either ground supported what the Court did that day. Ely, in fact, a supporter of abortion rights himself if legislatures did the work rather than courts, famously noted that Justice Blackmun’s opinion in Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
Professor Feldman concludes by remarking that Korematsu has entered an “anti-canon” of “cases that lawyers treat as exemplars of bad legal decision making.” For everyone not committed to the abortion license on ideological grounds, Roe has been in the “anti-canon” for more than 43 years. So with my thanks to Professor Feldman for making the argument so well against keeping unconstitutional precedents, I will amend his final sentences just a bit:
[Roe’s] uniquely bad legal status means it’s not precedent even though it hasn’t been overturned. Relying on it would be bad constitutional law.