Why Korematsu Is Not a Precedent

'The Supreme Court’s infamous 1942 Japanese internment decision, Korematsu v. United States, has never been overturned. But does that mean, as some of Donald J. Trump’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 — 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 And cases that seemed outdated and disreputable but remained on the books have sometimes recurred in the court’s jurisprudence, particularly after the Sept. 11 attacks.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 — 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 “Bowers was not correct when it was decided, and it is not correct today.” 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.'>>>

http://www.nytimes.com/2016/11/21/opinion/why-korematsu-is-not-a-precedent.html?