Korematsu v. United States

Justice Black declined to consider the question of legality or morality of the internment camps. The three dissenters--Justices Roberts, Murphy, and Jackson--vigorously attacked this refusal to confront what they regarded as the real issue in the case. Justice Roberts observed that, faced with "the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties . . . [Korematsu] did nothing." Justice Jackson added that "Korematsu . . . has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived." Justice Murphy confronted head on the racism inherent in the internment order:

No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry.

Citing the fact that there had been no imposition of martial law and that four months had elapsed after Pearl Harbor before the first exclusion order had been issued, Murphy questioned the claim of military necessity and dissented from what he called "this legalization of racism."

Jackson did not question the military's authority in making mass arrests, but he feared the ramifications of a Supreme Court endorsement of the internment orders:

[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

Korematsu was to provide the standard for judging legislation which is based on race or which violates fundamental constitutional rights. Black's "rigid scrutiny" became the Court's "strict scrutiny" standard. Korematsu has never been overruled, although in 1980 Congress authorized payments of $20,000 each to survivors of the internment camps.