The Shortcomings of Korematsu’s Dissents

In 2018, Justice Sotomayor likened Trump v. Hawaii (2018) to Korematsu v. United States (1944), sparking outrage amongst the justices of the majority. Justice Roberts quickly thundered back that Korematsu “was gravely wrong the day it was decided” and “ha[d] been overruled in the court of history.” Although worthy of further scholarly exploration, the “court of history” is a concept too expansive for legal scrutiny. Thus, to understand the legal arguments opposing General Dewitt’s exclusion order, this article turns to the oft-overlooked dissents of Justice Roberts, Jackson, and Murphy. The broad scope of internment’s atrocities and the clear racial antagonism of its sponsors were topics evaded by the majority opinion. Yet, nobody on the bench was quite ready – or committed – to forming a consistent and forceful opinion the other way. Most importantly, the dissenters joined the majority in sidestepping important considerations to advance their own argument. They, too, failed to create a sturdy framework for reconciling national security interests with civil liberty concerns. This article leaves open the question of how, and if, a Court concerned about public opinion could ever mediate these competing ideals.