The late Antonin Scalia cited Justice Robert Jackson’s dissent as his favorite Supreme Court opinion of all time. “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution,” Roberts says, quoting Justice Jackson’s 1944 dissent. “Take a look at what F.D.R. A Japanese internment camp in Manzanar, Calif., in 1942. For one thing, on Roberts’s own terms the passage discussing Korematsu is entirely dicta. “First, there was no request by the parties in the case to do that in this case so that was not an issue before the Justices; second, the language of an explicit overruling was not used; third, the majority said that the ruling ‘has been overruled by history’ -- which is not the same as an actual overturning of the precedent. This essay originally was published at the American Constitution Society’s ACSblog. The policy emerged from a climate of openly racist hysteria, in which politicians, opinion writers, and anti-Asian nativist groups loudly campaigned for mass exclusion, removal, and incarceration of Japanese Americans living on the Pacific Coast. The military used that power to order all people of Japanese ancestry, including American citizens, removed from the West Coast. At the time, Mr. Trump cited with approval Roosevelt’s actions, including wartime restrictions placed on Americans of Japanese, German and Italian ancestry, and said he was not going that far. Other articles where Trump v. Hawaii is discussed: Korematsu v. United States: In Trump v. Hawaii (2018), the Supreme Court explicitly repudiated and effectively overturned the Korematsu decision, characterizing it as “gravely wrong the day it was decided” and “overruled in the court of history.” Over time, Mr. Trump’s call for a complete ban on Muslims entering the United States evolved into a ban on entry by nationals from a list of troubled countries, most of which were predominantly Muslim. Brace yourselves! did many years ago,” Mr. Trump said at the time. That Court ruled in a 6 to 3 vote that the federal government had the power to arrest and intern Fred Korematsu under Presidential Executive Order 9066 on February 19, 1942 by President Franklin D. Roosevelt. It is known as the shameful mistake when the Court upheld the forcible detention of Japanese-Americans in concentration camps during World War II. The “morally repugnant order” that forced Japanese-American citizens from their West Coast homes and into detention camps “solely and explicitly on the basis of race” was different from “a facially neutral policy denying certain foreign nationals the privilege of admission” into the country, he wrote. The notorious 1944 ruling upholding the exclusion of Japanese-Americans from the West Coast has long been good law in the limited sense of never having been formally overturned (though it has never been cited as authority either).

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