us-supreme-court precedent
How could Korematsu be overturned?
<p>The US Supreme Court Case <a href="https://en.wikipedia.org/wiki/Korematsu_v._United_States" rel="nofollow noreferrer">Korematsu</a> (1944) ruled that the internment of American citizens of Japanese ancestry was legal out of concern for national security.  This case is now generally regarded as a mistake, even though it has never been revisited or overturned.</p>

<p>Short of a new case involving the mass incarceration of another group of citizens based on their national origin, is there a legal means to have the precedent re-visited and overturned?  Are we effectively stuck with this decision remaining as case law that can be cited?</p>

<p>The decision is not “on the books”: case law is not statute law.</p>

<p>The precedent stays and remains binding unless and until a case arises where the SCOTUS reverses it or Congress writes a law that bans mass incarceration. Assuming the underlying law on which the decision rested is still in existence and enforced of course.</p>

<p>The primary purpose of the judicial arm of government is not to interpret laws or set precedents; it is to decide disputes. Interpreting law and setting precedent is incidental to that primary purpose. Absent a dispute, the judiciary does not get engaged.</p>

<p>Given that the general consensus of legal opinion (what might be called the <a href="https://m.youtube.com/watch?v=wJuXIq7OazQ" rel="nofollow noreferrer">vibe</a>) is that the precedent <em>would</em> be reversed it is unlikely that the administrative branch would rely on the precedent. Therefore they wouldn’t mass incarcerate and no dispute will arise.</p>

<p>On June 26, 2018, the Supreme Court effectively overturned Korematsu by issuing a majority decision on another case<sup>[<strong>1</strong>]</sup>.</p>

<p>Chief Justice Roberts wrote in the decision of <em>Hawaii v. Trump</em>:<br><em>(commonly known as the Third Travel Ban)</em></p>

<blockquote>
  <p>“The forcible relocation of U.S. citizens to concentration camps,
  solely and explicitly on the basis of race, is objectively unlawful
  and outside the scope of presidential authority,”</p>
</blockquote>

<p>This is now a majority decision, more recent than Korematsu, which can be cited in future cases.</p>

<p><sup><strong>1</strong></sup> <a href="https://www.nytimes.com/2018/06/26/us/korematsu-supreme-court-ruling.html" rel="nofollow noreferrer">https://www.nytimes.com/2018/06/26/us/korematsu-supreme-court-ruling.html</a></p>
