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Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.