The Shortcomings of Korematsu’s Dissents

Justice Hugo Black, writing for the majority opinion in Korematsu v. United States (1944), declared: “Pressing public necessity may sometimes justify the existence of [racial] restrictions; racial antagonism never can” [1]. Black’s insistence on the importance of civil liberties is strikingly explicit. The irony is not lost on readers of the full opinion. In Korematsu, Black and five other colleagues affirmed the displacement of 120,000 Japanese Americans [2]. Only three justices – Roberts, Jackson, and Murphy – dissented, arguing that the government had propagated equal protection violations under the guise of public necessity [3]. Their dissents swiftly condemned the racial animus underlying General Dewitt’s removal and detention policies, expressing outrage over the reprehensible act of denying individual dignity [4].

While the majority may have suffered bouts of bad faith, it is far too simplistic to reduce their opinion to nothing more than disingenuous maneuvering. Ultimately, there was no West Coast invasion, mass espionage, or organized sabotage [5]. However, accepting these facts as if they were calcified in the spring of 1942 – when the exclusion orders were issued – is a neglectful use of hindsight. Of course, it is valid to argue that existential uncertainty mattered very little when weighed against the absolute certainty of physical maltreatment, psychological abuse, and property deprivation. Yet, this perspective was certainly not held, nor argued for, by the dissenters. The dissenters ultimately played into Justice Black’s forced choice, sidestepping questions of public necessity just as the majority downplayed evidence of racial antagonism. Thus, Korematsu's dissents fell short of devising a useful framework for mediating national security and civil liberty concerns, lapsing instead into legal gymnastics and sociological comparisons.   

In many ways, Justice Roberts’ dissent departed from the pitfalls of the majority opinion. He remarked that the term “Relocation Center” was a “euphemism for concentration camps” [6]. The majority notably shirked the question of internment, denying that forceful removal carried such horrific baggage. Black wrote, “We deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies” [7]. Although Roberts centered this issue, he danced around the concern of national security. As Black pointed out, “to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue” [8]. Justice Jackson’s dissent was similarly lacking and exceptionally defeatist. He settled for a weakly-supported argument that the Court simply wasn’t suitable for making determinations on national security. Jackson wrote, “How does the court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this…court” [9]. If the Court had held strictly to this notion, there would have been no emergency exception at all. 

The incredulous tone of the prior paragraph is certainly not a rebuke of civil libertarianism as a legal theory. The absolute triumph of civil liberties over national security is, if anything, the clearest framework for mediating the two. To mistake the dissenters’ evasion of national security questions for this ideology is, however, giving undue credit to both justices. If Roberts and Jackson truly believed public necessity to be a moot consideration, why did they join the unanimous opinion in Hirabayashi v. United States (1943)? [10]. In condoning the imposition of military curfews on Japanese Americans, the justices affirmed the erosion of certain civil liberties during wartime. Roberts simply did not address this line of precedent in his dissent. Jackson maintained it, writing, “Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones” [11]. It seems, then, that Jackson’s position was more a product of cynicism than unflinching conviction. Perhaps, knowing that their votes were not pivotal to the decision, both dissenters felt empowered to take symbolic stances without fully developed legal arguments. 

Justice Murphy’s stinging dissent came closest to reconciling issues of public necessity with issues of civil liberties. Like his colleagues, he began by identifying the “obvious racial discrimination” exhibited in the exclusion order [12]. He analyzed its racist roots by citing the Commanding General’s pernicious descriptions of Japanese Americans as a “subversive” type of “enemy” [13]. He countered common arguments about nationalism, clustering, and sabotage, undercutting their “questionable racial and sociological grounds” [14]. Yet, while Roberts and Jackson waved away the task of weighing national security concerns, Murphy explicitly called for “definite limits to military discretion” [15]. He took aim at the public necessity assumptions of the majority opinion, astutely pointing out that no West Coast attacks occurred after Pearl Harbor [16]. 

As Murphy’s opinion hinges on the dearth of evidence supporting public necessity, it must answer two questions about the nature of evidence. (1) What qualifies as sufficient evidence of public necessity? Korematsu was decided in December of 1944, when “the war had shifted strongly in the allied forces’ favor” [17]. Like Roberts and Jackson, Murphy had signed onto the 1943 majority opinion in Hirabayashi. Perhaps, in 1943, the heightened fear of imminent invasion had made it easier to overlook lackluster evidence. This contradiction raises a worrying point: justices seem more willing to lower the standard of proof during times of widespread fear but more cautious after the panic subsides. (2) Should there be different standards of proof depending on the severity of the racial restriction? Perhaps, Murphy believed that curfew restrictions were such an insignificant erosion of civil liberties that they were permissible despite little evidence of public necessity. On the other hand, Murphy could have believed that internment was such a horrific civil liberties violation that it was impermissible despite the urgency of national security concerns. If so, it is unclear on which grounds he made these distinctions.  

Ultimately, the dissenters struggled to mediate the competing interests of public necessity and civil liberties. A civil libertarian approach would have sparked public outrage for narrowing, or voiding, the scope of emergency exceptions. For an arguably majoritarian Court, this radical move was likely off the table [18]. On the other hand, a balancing act that weighed the relative severities of national security concerns and civil liberty violations would have presented its own set of problems. Even without the complicating factor of hindsight, any cost-benefit analysis would have raised heavy normative questions. Once again, it seems unlikely that the Court harbored any desire to insert itself into controversial moral debates. These pitfalls are certainly not unique to the dissenters of Korematsu; after all, it is hard to imagine today’s Court resolving these difficult questions with much more success. Perhaps, then, barring a fundamental change to the Court’s majoritarian tendencies, the people should prepare themselves for unpredictable wartime decisions and push leaders to avoid military conflagrations – and their associated dilemmas – from the get-go. 

References

[1] Korematsu v. United States, 323 U.S. 214 (1944).

[2] Lain, Corinna Barrett. “Three Supreme Court ‘Failures’ and a Story of Supreme Court Success.” Preprint. LawArXiv, May 4, 2017. https://doi.org/10.31228/osf.io/5csgw.

[3] Korematsu v. United States, 323 U.S. 214 (1944) (Roberts, Jackson, Murphy dissenting opinions).

[4] Ibid.

[5] See footnote 2.

[6] Korematsu v. United States, 323 U.S. 214 (1944) (Roberts dissenting opinion).

[7] See footnote 1.

[8] Ibid.

[9] Korematsu v. United States, 323 U.S. 214 (1944) (Jackson dissenting opinion).

[10] Hirabayashi v. United States, 320 U.S. 81 (1943). Fearing that Japanese Americans would engage in concerted espionage and sabotage of military areas, President Franklin Roosevelt passed several Executive Orders authorizing the regulation of such persons. In Hirabayashi, a unanimous court upheld a curfew mandate that Gordon Kiyoshi Hirabayashi had allegedly violated. Writing for the majority opinion in Korematsu, Justice Black observed how Hirabayashi enshrined the principle of public necessity during wartime.

[11] See footnote 9.

[12] Korematsu v. United States, 323 U.S. 214 (1944) (Murphy dissenting opinion).

[13] Dewitt, John. “Final Report on the Evacuation of Japanese from Certain Military Areas in Western Defense Command.” Office of the Commanding General, June 5, 1943. 

[14] See footnote 12.

[15] Ibid.

[16] Ibid.

[17] See footnote 2.

[18] Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Oxford University Press, 2006. While many other scholars have studied the court as a reflection of majoritarian interests, Professor Klarman’s scholarship was my first introduction to this idea. In his chapter on Brown v. Board of Education (1954), Professor Klarman wrote, “Brown was not an example of the Court’s resistance to majoritarian sentiment, but rather of its conversion of an emerging national consensus into a constitutional command” (pp. 310). He engages in similar contextualization of other civil rights cases throughout the book.