The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I mentioned earlier, today's decision in Trump v. Hawaii makes an interesting statement about the Court's much-maligned precedent in Korematsu: that it "has been overruled in the court of history." For context, here is the full paragraph:
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." 323 U. S., at 248 (Jackson, J., dissenting).
Several of you have written in about "the court of history." In the context of Korematsu, the phrase dates back to at least 1982, when the U.S. Commission on Wartime Relocation and Internment of Civilians declared that "Today the decision in Korematsu lies overruled in the court of history." (See p. 238 of the report.)
But it is also not the first time that the Court has used the phrase. Two dissenting opinions in labor law cases, one from Justice Breyer in BE & K Const. Co. v. N.L.R.B. (2002), and one from Justice Goldberg in United Mine Workers v. Pennington (1965) refer to a dissenting opinion by Justice Brandeis in Duplex Printing Press v. Deering that "carried the day in the courts of history" when Congress passed, and the Supreme Court interpreted, the Norris-LaGuardia Act and the National Labor Relations Act.
But the more important, and first, Supreme Court reference to the "court of history" is in New York Times v. Sullivan, where the majority has to deal with the infamous founding-era practice of prosecutions under the federal Sedition Act:
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 **724 Stat. 802, accompanied by H.R.Rep.No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter 'which no one now doubts.' Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: 'I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.' Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U.S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288—289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899—900; Chafee, Free Speech in the United States (1942), pp. 27—28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.
The one earlier judicial reference I could find was in a dissent to the Pennsylvania Supreme Court's 1943 decision in Commonwealth v. Vallone, concerning the court of history's judgment about whether President George Washington was financially corrupt. So apparently the "court of history" has an eclectic jurisdiction.