Korematsu v. United States
Concurring and dissenting opinions
Justice Felix Frankfurter authored a short concurring opinion, which, as was Frankfurter's wont, made a stand for judicial restraint: "To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours."[1]
Three justices, Owen Roberts, Robert Jackson, and Frank Murphy each filed a separate dissenting opinion. Roberts disagreed with the Court's reliance on the Hirabayashi precedent, arguing that the facts of Korematsu's case suggest that the exclusion order he violated must be viewed as part and parcel of "an over-all plan for forceable detention."[2] He also expounded upon the catch-22 created for Korematsu by the conflicting Proclamation No. 4 and exclusion orders:
The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center.<ref>Ibid.
In other words, Korematsu's only non-criminal avenue for challenging his exclusion from San Leandro would have been to report for relocation to an internment camp and, once there, petition for a writ of habeas corpus, as had been done in the Endo case.
Murphy's dissent was especially scathing, famously commenting that the majority decision "falls into the ugly abyss of racism."
Aftermath
Today, this decision is widely criticized and denounced as a classic example of wartime encroachment on civil liberties. The Congress passed the Japanese American Evacuation Claims Act to provide compensation to Japanese properties damaged during the "relocation". In 1980 the Congress opened an investigation to the internment program and a report titled "Personal Justice Denied" was written. The report condemned the "relocation" and the Korematsu court decision. In 2001, the PBS broadcast a Eric Paul Fournier film Of Civil Wrongs and Rights in memory of the Japanese internment and the Korematsu litigation. In 1998, Fred Korematsu was awarded the Presidential Medal of Freedom by President Bill Clinton; he died in 2005.
Tom Clark, the coordinator of the relocation program, was nominated to became a Supreme Court justice in 1949. He said he regretted his role in the Japanese internment and referred to it as one of his biggest mistakes. When Clark resigned from the Court in 1967, he was replaced by the first black Justice, Thurgood Marshall.