Korematsu v. United States: A Tragedy Hopefully Never to Be Repeated

Abstract

Over the course of American history there have been some terrible Supreme Court decisions with disastrous consequences. There is a great deal to learn from studying the mistakes made by the United States Supreme Court—most of all, how to avoid repeating them. Understanding the bad decisions can help increase the likelihood of good ones in the future.

Looking at the Court’s mistakes also provides a powerful reminder that the Supreme Court has tremendous discretion. Of course, we shouldn’t need a reminder of this. This has been obvious throughout history, and the Legal Realists long ago reminded us of this. But it was only a few years ago that Chief Justice John Roberts, in his confirmation hearings, tried to tell the Senate Judiciary Committee that judges are just umpires who call balls and strikes, implying that there is little discretion.1 And just a couple years ago, Sonia Sotomayor sat before the Senate Judiciary Committee and told the Senators that Justices just apply the law, not make the law. These brilliant individuals should have been ashamed of saying that to the Senate Judiciary Committee.

The cases examined in this symposium are a powerful reminder that the Court has great discretion in deciding constitutional cases and that bad decisions can have devastating effects. We are at a time when there is great judicial arrogance with a Court that shows little deference to the other branches of government or to lower courts. But this arrogance masquerades as judicial humility as the Justices try to portray themselves as having little discretion. The cases examined in this symposium on the worst decisions in history are a powerful reminder of the need for real judicial humility.

In this paper, I make three points. First, I discuss the criteria for assessing what makes a bad decision. Second, I address why Korematsu v. United States was a terrible ruling. Finally, I discuss some of the lessons that might be learned from Korematsu.