Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School. Follow him on Twitter @Richard_Primus.

What will the Supreme Court do when President Donald Trump’s travel-ban order finally comes before it? The most likely outcome is for the court to declare the ban unconstitutional. The reasons why are straightforward, and last week’s ruling by the 4th Circuit lays them out pretty clearly. In brief, the executive order was motivated by a purpose to discriminate against Muslims, and courts don’t have to pretend not to know what the motivation was. The order’s discrimination on the basis of religion violates the First Amendment, and even the president’s broad discretion on immigration policy does not authorize him to get away with discriminatory action merely by lying about his motives.

To be sure, a handful of dissenting judges and a larger number of commentators have disputed parts of this logic. But a large majority of judges—including Republican as well as Democratic appointees—have seen the order as unconstitutional for the reasons given above. The administration’s only hope of vindication before the highest court, therefore, is the possibility that the justices will prove considerably more lenient toward the order than their lower-court colleagues have been. That happens sometimes. But it seems unlikely to happen here, and not just because the best reading of existing case law points toward the order’s unconstitutionality.


Here’s one of the other reasons: The administration cannot win this case without Justice Anthony Kennedy. And Justice Kennedy could well see in this case an opportunity to do one of the things that he most loves to do, which is to intervene in the grand sweep of constitutional history by repudiating ugly decisions from the court’s unfortunate past. In particular, the travel-ban case offers Kennedy the chance to overrule a widely reviled decision that has never been officially overruled: Korematsu v. United States.

In Korematsu, decided in 1944, the court upheld a military order, supported in turn by an executive order, banning all persons of Japanese descent from large areas of America’s West Coast. Many of the people forced to leave their homes were sent to internment camps farther inland. The court’s role in that chapter of American history has been a mark of shame on the institution for the better part of a century. And although the Japanese internment and the Trump administration’s travel ban are different in several important ways—discriminatorily refusing entry to aliens is not morally equivalent to discriminatorily imprisoning America’s own citizens—the constitutional issues surrounding the travel ban easily evoke central issues of Korematsu.

In both cases, the executive branch acts on the theory that members of a marginal demographic group are dangerous but officially insists that its actions are warranted by legitimate policy imperatives rather than flowing from prejudice. In both cases, the executive branch claims that the judiciary must not second-guess the executive because the case concerns dangerous subject matter in which the executive’s expertise vastly exceeds that of any court and in which a mistake could be catastrophic: wartime national defense in Korematsu, immigration control as a form of defense against terrorism today. In Korematsu, the court accepted that claim of exclusive executive authority—to its great shame thereafter. So the travel ban case offers the court a shot at redemption. A decision asserting that the court will and must check executive branch bigotry even when the executive claims a national-security rationale would be a natural vehicle for at last overruling Korematsu.

Outside of the Supreme Court, Korematsu has already been widely repudiated. In 1984, a federal trial court vacated Fred Korematsu’s conviction for violating the World War II exclusion order. Four years later, Congress passed legislation apologizing to the Japanese-Americans who were interned and providing for reparation payments to those still living. And in 2011, the Department of Justice confessed error in the case, announcing that the solicitor general who argued Korematsu before the Supreme Court was wrong to have defended the military’s claims about Japanese-Americans as security threats. But for two reasons, it matters that the Supreme Court has never officially overruled Korematsu. One is symbolic: The court is the chief narrator of American constitutional history, so an ugly chapter from the past can never be fully closed until the court itself writes the better ending. The other reason is much more practical. So long as Korematsu is still technically good law, the possibility remains that government officials will invoke it to support acts of racism masquerading as national security measures. As Justice Robert Jackson warned in his Korematsu dissent, the case “lies about like a loaded weapon.”

For more than half a century, well-socialized constitutional lawyers pushed Jackson’s warning to the margins of their consciousness. Nobody, the thinking went, would ever try to win a case by relying on Korematsu, because the racism with which Korematsu is associated was so clearly beyond the acceptable norms of American government. Within the culture of American law, Korematsu had become an anti-canonical decision: Every student of constitutional law studies it as an object lesson in what courts should not do. But events of the past two years demonstrate how quickly a consensus about political norms can dissolve. The Trump campaign and the Trump administration have shattered any number of norms that officials of both political parties long took for granted. And indeed, shortly after last November’s election, at least one high-profile Trump supporter publicly adduced Korematsu as precedent when arguing for the permissibility of race- and religion-based immigration controls. To this point, the actual Justice Department lawyers arguing in defense of the travel ban have declined to rely on Korematsu. But given how far the boundaries of acceptable argument moved in 2015 and 2016, it seems naive to rest assured that government lawyers in 2019 or 2022 will still see Korematsu as toxic. It’s likely that they will. But nobody who has been paying attention should think that the relevant unofficial norms are guaranteed to persist. So in the current context, Jackson’s warning seems more pressing than it did four or 40 years ago. There is now a higher premium on unloading the metaphorical weapon and overruling Korematsu officially.

To be sure, the court could strike down the travel ban without mentioning Korematsu at all. As described above, the shortest route to declaring the ban unconstitutional would rest on the religion clauses of the First Amendment, which were not at issue in Korematsu, and a ruling that the president does not enjoy unbounded discretion over immigration policy need not say anything about the extent of the president’s authority over security matters during a time of actual and declared war. But there is little reason to think the Supreme Court will want to avoid Korematsu when it has been handed an invitation to condemn it. And among the justices on the court today, perhaps none will be more attracted to the idea of condemning that past wrong than Kennedy.

Consider, after all, what Kennedy has done when afforded similar opportunities in the past. In 1992, a landmark Kennedy opinion (officially co-written with Justices Sandra Day O’Connor and David Souter, but with a voice that sounds unmistakably Kennedyesque) repudiated the court’s 1896 pro-segregation decision in Plessy v. Ferguson in more forceful terms than the case before him required—and indeed in more forceful terms than appeared in Brown v. Board of Education itself. When striking down school segregation in Brown, the court wrote that the conditions of 1954 called for a different analysis than what the court had offered in 1896. When Kennedy had his chance 38 years later, he went further, insisting that “Plessy was wrong the day it was decided.” And in 2003, in the opinion that overruled Bowers v. Hardwick—the court’s infamous decision upholding anti-sodomy laws—Kennedy reached for the same formula, pronouncing that “Bowers was wrong the day it was decided.”

Plessy, Bowers, and Korematsu are all anti-canonical cases. But Plessy and Bowers have been officially overruled, and Korematsu has not. For Kennedy, who is particularly invested in the grand transgenerational narrative of constitutional law—and perhaps for several of his colleagues as well—issuing opinions that consign such anti-canonical decisions to the ash-heap of history may be among the most satisfying things a justice can do.

In the American system, the Supreme Court acts not just as the adjudicator of specific legal issues but as the most salient narrator of the constitutional tradition. And there is something noble about confessing error, even when it comes too late to help the people whose lives were damaged by the court’s earlier conduct. “Korematsu was wrong the day it was decided” has a pretty good ring. And a justice whom the administration absolutely needs if the travel-ban order is to survive might like to go down in history as the man who said it.