How are Korematsu and M’Culloch alike?
Recently there has been some discussion about whether the Justice Department should formally disavow any future reliance on Korematsu and ask the Supreme Court to overrule the case. It may come as a surprise to some that Korematsu is still good law, but the problem is that a similar situation hasn’t really arisen since the 1940s. How, then, can the Court overrule the case? Dicta is a possibility, but it is easy to see why the Justices may not want to overrule a case in that way.
The same issue arose with respect to M’Culloch v. Maryland. As I explain in my book on Jacksonian Democracy, the Taney Court probably would have overruled that decision if given the opportunity. The obstacle was that–after the charter of the Second Bank of the United States expired in 1836–there was no way to bring a case to the Court to overrule the decision. Lawyers came up with creative ideas to solve this dilemma, but to no avail. That was lucky for the future of constitutional law, but the stain of Korematsu is the price of this common law structure.