27592094

Duke University School of Law
A Commander's Power, a Civilian's Reason: Justice Jackson's "Korematsu" Dissent Author(s): John Q. Barrett Source: Law and Contemporary Problems, Vol. 68, No. 2, Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary (Spring, 2005), pp. 57-79 Published by: Duke University School of Law Stable URL: http://www.jstor.org/stable/27592094 . Accessed: 21/08/2013 22:51
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A COMMANDER'S POWER, A CIVILIAN'S REASON: JUSTICE JACKSON'S KOREMATSU DISSENT

John Q. Barrett*
I Introduction Robert Court Jackson was Houghwout during the years ofWorld War a justice of the United II. This article considers Supreme his great but po v. United States,1 in States
United
in Korematsu 1944 dissent tentially perplexing December the constitutional that proclaimed which he refused to join the Court majority from the West Coast of the ity of military orders excluding Japanese Americans States
characteristic Supreme were, who much
during theWar years.2 American internment history and the general public memory it Japanese that Robert H. Korematsu with in his Justice Jackson was, shapes recall today candor Court called and gifted writing style, one of three?sadly, these military policies justices who recognized them by their racist name, and who refused only three? for what they to assist in their res
enforcement by judging them to be authorized by theConstitution. We

less often that Justice Jackson also wrote inKorematsu,
recall
with explicit
? 2005 by John Q. Barrett Copyright

This article * Professor is also
at http://law.duke.edu/journals/lcp. available School of Law, St. John's University of Law, New York City, and Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, New York (http://www.roberthjackson.org). on November This article grows out of remarks I delivered 6, 2004, at the conference, "Judgments the Japanese American Remembered: Civil Liberties Cases Examining of World War Judged & Wrongs II on Their grateful at the Japanese 6?h Anniversary," to the skilled leaders and personnel American of the National Museum institutions
University ter?and
the JANM, School of Law, of North Carolina Law Professor Eric M?ller, to UNC especially event. This article also reflects my September it an extraordinary 26, 2002, participation pertise made at Chautauqua Institution's in a Jackson Center conversation Lenna Hall with Fred Korematsu, his I am very grateful to Fred filmmaker Eric Paul Fournier. and documentary wife Kathryn Korematsu Eric Fournier, L. Peterson, Karen Korematsu-Haigh, Scott McVay, and Kathryn Korematsu, Gregory Elizabeth and many others who made that special event Richard Thomas Lenna, Becker, Redington, I also thank Lauren DiFilippo, Melissa and Jessica Duffy for excellent Peterson, Ann Carroll, possible. research assistance. Fred 2005. As 2. Korematsu, a token of See a wonderfully gentle man, was eighty-six years old when he died on March I dedicate this article to his memory. thanks for his lifetime of brave patriotism, (Jackson, J., dissenting).
I am very in Los Angeles. that sponsored the conference?the and the UCLA Asian American Studies Cen whose vision, boundless energy, and deep ex
30,
1. 323U.S. 214 (1944).

id. at 242-48
58
Law
and
Contemporary
Problems
[Vol. 68:57
that civilian courts, up to and including ignation about judicial powerlessness, should abstain from attempting to hold mili his own Supreme Court, perhaps to in limits constitutional commanders wartime. tary This article considers Justice Jackson's Korematsu dissent in full. It was and is, contrary to some of the criticisms it has received over the past 60 years, a co can and should see this for themselves?reading herent position. this (Readers no is for Jackson's substitute article Jack compact reading six-page dissent.) and personally is also biographical and, to that extent, deeply as quintessen in It from his outlook emanated and part pragmatic. upbringing a as who American viewed civilian and rural life individually tially pacific in such times of peace and and who saw our law as most workable autonomous, It was grounded as well in his very special, di freedom. unthreatening personal son's dissent
with executive power. In the decade preceding rect, and formative experiences his civilian judicial encounter with the military orders at issue in Korematsu, Jackson was very often a central player in exercising, and was constantly an up nature of the Executive close witness its to, the unstoppable power that reaches apex view inmilitary command. of people and power and Jackson's Korematsu dissent also and into what he saw throughout fit into his general his life as the idea
of law itself: it is the codified product of human beings struggling, by employing

to impose some limits on what they and capacities, could perpetrate with the vast powers their governments otherwise they pos sess. And despite Jackson's institutional pessimism about the power apparent of courts to protect constitutional liberties from military command threats dur as and had part of its bottom ing wartime, his Korematsu opinion also displayed, their rational selfless line, his characteristic optimism to itsmost powerful leaders. In his years after Korematsu, his dissent's about U.S. Justice on democracy, Jackson from its smallest people
perspective and his hopeful view that the people who possess such power military?power, are capable of restraining themselves in its exercise. At Nuremberg, in particu was the chief American of the surviving lar, where Jackson military prosecutor Nazi leaders worked unconditional following Germany's leaders who exercised with closely military as?and surrender
confirmed
the vast nature
had unique that experiences of executive?including
self functioned
sibilities of being?one Jackson was never
to the Allies, he such restraint, and he him success to live up to the respon tried with considerable of those powerful commanders. fully satisfied with his Korematsu of defining opinion, but he knew
had properly identified the unconstitutionality of civilian and his candor about the weakness time executive
two things from itswriting in 1944 until the end of his life ten years later: he
crimes based on race, as a limit on war
judicial power was to alternative that his power any superior judicial approach or had he His offered that could colleagues imagine. dissenting opinion was, he as a of perhaps the toughest chal candid, smart consideration knew, effective lenge to civilian self-government: the military commander's wartime power.
Spring 2005]
JUSTICE JACKSON'S KOREMATSU DISSENT
59
For
all of these
reasons,
Justice
Jackson's
dissent
in Korematsu
v. United
States merits
lead mand, Jackson's words and his example may offer real hope that wartime ers will not, simply because it they can, act to curtail individual liberty when to and risks of national ideals theoretical poses security. physical II Jackson's Korematsu Dissenting Opinion
its very high place in both the American legal and the human can to be studied, admired, and celebrated. ons. The opinion?all If of it?deserves com vast who the of leaders wield it gets absorbed powers military deeply by
of military curfew orders directed at West Coast the constitutionality Japanese must thus be located in the context Jackson's dissent inKorematsu Americans.3 a significant break from his as a justice, for itmarked of his own development previous judicial acquiescence citizens at home. As of U.S. late and detail, Jackson was Professor skeptical in military measures Dennis that restricted Justice the liberties opinion Hutchinson has documented Stone's
like his senior colleagues J. Justices Owen Justice Jackson was, Although a dissenter inKorematsu, he earlier had been part Roberts and Frank Murphy, v. United States, inHirabayashi that upheld, of the unanimous Supreme Court
in
the constitutionality of such dras considering early days of the Supreme Court's as a in and Jackson's first tic wartime military measures, years justice, he saw of their relatively minor and, because military curfew orders as understandable nature,
World War II, in those for theCourt in years of Hirabayashi? But in those first
in joining Chief
im restrictions on civilian freedom. Military tolerable constitutionally was an a in for Jackson and each of of curfew the justices nighttime position on out that balanced could be and individual freedom against, fringement the military's security need. by, conviction that the curfew served a legitimate ac
weighed wartime By
the fall of 1944, however, Justice Jackson's judicial measures to U.S. race-based military against quiescence When the justices met in conference on October 16,1944, the Korematsu yashi" case, Jackson told his colleagues and would go no further.5 Two months
and constitutional citizens to discuss had
ceased.
and vote on
that he "stop[ped] with Hiraba later, when the Court announced
Exclusion
"The Achilles HeeV Justice Jackson and the Japanese J.Hutchinson, of the Constitution: even So too in Ex Parte Quirin, 2003 Sup. Ct. Rev. 455, 462-476. Cases, argued and decided earlier, when Jackson had been on the Court only one year, in which he belatedly joined Chief Justice tribunal procedure the military Nazi Stone's by which undercover agents, appre upholding opinion and punished six executions). See 317 U.S. hended on U.S. soil, were swiftly tried, convicted, (including 4. Dennis
3. 320U.S. 81 (1943).
1 (1942).
5.
versity ofMichigan, Box 133, quoted in PETER IRONS, JUSTICE AT WAR 322 (1983); accord THE Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300
Supreme Court Decisions their conference he jotted discussion after reading 687-91 (Del Dickson Justices' notes to recreate ed., 2001) (using various in some notes that inKorematsu). Jackson indicated earlier, Interestingly, reverse" Kore but would briefs in the case, that he was undecided "[p]robably
Conference
notes
of Justice Frank Murphy,
"No.
20
[sic], O.T.
1944,"
inMurphy
Papers,
Uni
60
Law
and
Contemporary
Problems
[Vol. 68:57
to the public Fred Korematsu's its decision for criminal conviction upholding exclusion Jackson his the announced dissent order, military's violating through an opinion that included one of the ringing principles of our nation and our law: constitutional
not
[I]f any fundamental assumption underlies our system, it is that guilt is personal and
inheritable. because to a race ... But here an otherwise to make act a crime is an attempt innocent as to whom this prisoner is a son of parents he had no choice, and be from which there is no way to resign.
merely longs
In his dissent's Japanese

more
classic
joritydecision to uphold the constitutionalityof themilitary orders excluding

Americans
subtle
passage,
Jackson
explained
the malignancy Coast:
of the ma
such as Fred Korematsu
from theWest
[A] judicial construction of the due process clause thatwill sustain this order is a far
or to liberty than the promulgation of the order itself. A military is not apt to last longer than the military unconstitutional, emergency. a succeeding that period revoke commander it all. But once a judi may or such an order to show that it conforms to the Constitution, rationalizes blow the Constitution and of to show that the Constitution citizens. The sanctions principle such then an lies
der, however Even during cial opinion rather
rationalizes
order, the Court for all time has validated the principle of racial discrimination in
criminal
about like a loaded weapon ready for the hand of any authority that can bring forward
deeply mander a plausible claim of an urgent in our law and thinking may overstep need. and the bounds that principle imbeds repetition it to new purposes.... A military of constitutionality, and it is an incident. But Every expands more com ifwe,
procedure
transplanting
American
be in its image. Nothing better illustrates thisdanger than does theCourt's opinion in
this case.7
that passing the Supreme the doctrine of review and approve, incident becomes Court, it has a generative the Constitution. of its own, and all that it creates will There power
said only that, itwould be an to study and celebrate, but itwould not be much of a puzzle or a target opinion for continuing criticism. These words put Jackson on the right side of what is, at an easy case. In this respect, his words least from our historical perspective, If Justice Jackson's dissent in Korematsu had very much Japanese resemble Americans that the wholesale Justice Murphy's analysis from theWest Coast was based on unfounded exclusion "racial of and
[and thus was] not entitled to the great weight ordi the narily given [military] judgments based upon strict military considerations."8 close and scathing parsing of And these Jackson words evoke Justice Roberts's sociological considerations
matsu's
criminal
conviction.
Division Manuscript 6. Korematsu, 7. 8. racism" braced /?/.at245-46. See and
H. Jackson note, "22," in Robert Box 132. "RHJ Papers"), (hereinafter at 243-44 (Jackson, J., dissenting). 323 U.S.
Jackson
Papers,
Library
of Congress,
id. at 239-40 described
the principles
called the Court's Murphy (Murphy, J., dissenting). opinion a "legalization as "utterly revolting among a free people who have racial discrimination set forth in the Constitution of the United States." Id. at 242.
of em
Spring 2005]
JUSTICE JACKSON'S KOREMA TSU DISSENT
61
would
and indeed almost certain, that the judiciary thought itwas predictable, individuals challenged defer to the military whenever itswartime actions, he all but urged courts to treat as non-justiciable citizen's claim that a war any Jackson time military action was unconstitutional. recently, dissent "that constitutional Jackson seemed
second part is, especially when juxtaposed with his first part, the puz because it expressed about a civilian court's ability and will to zler, pessimism on enforce constitutional limits exercises of military power in wartime. Because
the contradictory military orders that simultaneously confined Fred Korematsu area the California in which he lived.9 and him excluded to, from, These words were, however, dis only the first part of Jackson's Korematsu sent. The
Court
ha[d] not addressed" "at all."10 This aspect of Jackson's the time of the decision. lived after Korematsu. It also And it does
As Professor Patrick Gudridge put it to be arguing in this latter portion of his Korematsu have been better served if the Supreme law would the constitutionality of the military exclusion orders dissent troubled those who focused on it at troubled Jackson, then and during the years he today as we think about the the national war
it remains or does
Constitution
it powers ostensibly addresses. two This second part of Jackson's dissent inKorematsu begins by describing saw as he in that fixed the realities: circumstances civilian (1) legal process, as and Court Jackson his such lack the martial Supreme judges, colleagues, needed competence tions by commanders 1942, ordered to determine such as Lieutenant Americans ac the actual military necessity of wartime General John L. DeWitt, who headed excluded from theWest Coast;11 and
and how
troubling not constrain
theArmy's Western Defense Command from 1939 until June 1943 and who, in
Japanese (2) ci
9. See id. at 225-33 Justice Roberts called these contradictory J., dissenting). (Roberts, military a federal misdemeanor, of which each constituted orders, violations "nothing but a cleverly devised of the military to lock [Korematsu] the real purpose trap to accomplish up in a authority, which was Id. at 232. concentration camp." In Ex parte Endo, in which the Court held, on the same day on which it upheld in Korematsu the of military exclusion that there was no legal authority for the government to orders, constitutionality citizen of the United detain a loyal Japanese American States based only on her race, Justices Murphy as and Roberts each filed a separate opinion stating bluntly that such detention was as unconstitutional were the military orders that had excluded like Ms. Endo and Mr. Korematsu from their West persons Coast home areas. See 323 U.S. Jus 283, 307-08, 308-10 (1944) J., concurring). (Murphy, J., & Roberts, tice Jackson, by contrast, who initially drafted for himself (it being his habit to start drafting an opinion a short opinion on the unconstitutionality for himself as he thought about cases) of detaining United citizens in RHJ Papers, "in camps without conviction Box 133, reprinted in Patrick
States
that Endo's fessor Gudridge's article is an intriguing argument condemnation was based on narrow in constitutional law, not merely statutory and Executive as such.) and commemorate and that we should understand Endo 10. Gudridge, supra note 9, at 1933. 11. tion orders
1969-70 (2003), ultimatelydecided simplyto join Justice Douglas's opinion for theEndo Court. (Pro
of the detention order camps interpretations,
of crime," Jackson "Endo," three-page typescript opinion, O. Gudridge, Remember 116 HARV. L. REV. Endo?, 1933,
See generally DeWitt also selectively issued exclusion and reloca IRONS, supra note 5. General to non-Japanese re American citizens of the United States who lived within his command account For an odd and somewhat of one such order, which resulted in the court gion. entertaining see REMO of a U.S. citizen and soldier of Italian ethnic heritage who ultimately was acquitted, martial
62
Law
and
Contemporary
Problems
[Vol. 68:57
vilian
courts?at about
least those national
claim. "military necessity" properly, to a commander's these practical realities in his dissenting Jackson explained
The limitation under which courts order are military have a reasonable
the military
that recognize security matters
their incompetence in wartime?would
to second-guess thus defer, quite opinion:
Coast
any other court. There is sharp controversy as to the credibility of theDeWitt [final] West report [explaining themilitary basis for removing Japanese Americans from the
accept in 1942.] General no real evidence before but to it, has no choice having untested unsworn, statement, by any cross self-serving courts that what he did was reasonable. And thus itwill always be when into the reasonableness of a military order. So DeWitt's the Court, own
in examining labor the necessity for a always will does the Court know that these orders illustrated by this case. How in necessity? No basis whatever has been evidence taken by this or
examination, try to look
are not susceptible of things, military orders In the very nature of intelligent judicial on information to rest on evidence, do not pretend but are made that They appraisal. not be admissible and on assumptions that could not be proved. Informa often would tion would dence. ration military of an order could in support the enemy. Neither reach Hence courts can never that of the authority viewpoint. not be disclosed act to courts without can courts on communications to accepting reasonably
that it danger in confi made the mere decla from a
have
issued
any real alternative the order that it was
necessary
For
readers
the military's confession of civilian military measure ence to military went a wartime against
looking to embrace Justice Jackson's racist exclusion of Japanese Americans
judicial incompetence and his resulting call for court defer actually was necessary claims of necessity were not the end of the bad news. Jackson on to predict, in effect, that civilian judges never would presume to declare and that this reality unconstitutional, military measure to review such cases in the first place: courts even embarking
not The to rely on lead people reasonableness military this Court of these for a review orders that seems to me can only be determined
of condemnation eloquent from the West Coast, his to determine whether this wartime
counseled
de
I would lusive.
wholly
by military
superiors.... duties My to whether as a as I see justice General DeWitt's them do not evacuation me a military to make require was and detention program should have attempted as judgment reasonable to interfere
I do not suggest that the courts necessity. military in carrying out its task. with the Army
tional
in the first part of the opinion, constitu racist exclusion orders, what Jackson ar for civilian courts ticulated in this second part of his opinion was a prescription to abstain from reviewing the constitutionality of military action during war In other words, having announced, of the military's condemnation time. Justice Jackson's tant one, for itwas Korematsu the basis dissent contained a third argument?an impor at the bottom line, dissenting and
on which
he was,
BOSIA, The General
admitting that he never met 12. Korematsu, 323 U.S. 13. Id. at 248.
and I 36-37, 74,102 (1971) (personalizinghis battleswith General DeWitt but

the man). at 245 (Jackson, J., dissenting).
Spring 2005]
63
dissenting alone. to enforce made reasonable
"I should hold," Jackson wrote, "that a civil court cannot be an order which violates constitutional limitations even if it is a of military authority."14 At the very end of his opinion, the Constitution. I would he re
exercise
repeated this idea: "I do not think [the civil courts]may be asked to execute a
military expedient verse the judgment
What
to explain or develop it. Yet it actually was the key turn in his dissent, for itwas in the Court's result? the argument that explained why he was not concurring a in that Fred Korematsu criminal?or his col was, law, joining dissenting order was unconstitutional. in reasoning that the military exclusion leagues Jackson was ference race-based if a civilian
Although Jackson declared thisultimate position bluntly,he did very little
that has no place in law under the prisoner."15 and discharge
assist the military in enforcing lieved, a civilian court could not, constitutionally, on its face?its an order that is racially discriminatory blatant racism made it, In any such ven and judicially untouchable. for courts, legally, constitutionally, the military would have to do its deeds on its ture, Jackson was announcing, own, without judicial assistance or imprimatur.16
stating, very tersely, was that for him itwould make no dif court could somehow that a determine, with competence, inmilitary terms. Even he exclusion order was reasonable be then,
courts probably
dissent?his argument that part of Justice Jackson's Korematsu to mili constitutional should abstain from deciding challenges At the level of in wartime?contained many messages. tary policy judgments to he his earlier be the Court the particular seemed case, castigating (including The second self, for he had voted to grant Fred Korematsu's petition to review the for constitutionality having agreed tiorari17) seemed seeking a writ of cer of this criminal con
a military order of exclusion. More Jackson for violating generally, not to from to be advising prospective seek judicial protection litigants was he also unconstitutional military actions. lobbying his Court col Perhaps viction
14. M 15. M 16.
at 247. at 248. as "one of the greatest as a "surprising" disap the military's exclusion A. Posner, Law,
and admiringly, Posner, who views Jackson generally, Judge Richard dissent this closing strand of his Korematsu Justices," has described pragmatic Jackson there failed to understand because that, in Posner's view, pointment
Pragmatism & Democracy
order
"did
not
violate
any
hard-edged
dissent: book advocating part of Jackson's Korematsu judging, the second, utterly pragmatic, pragmatic of wartime actions that the the constitutionality his argument that courts should abstain from reviewing in the end, simply to approve those ac the courts are destined, because claims are necessary military law in the process. constitutional tions anyway, debasing
293, 294 (2003). Interestingly, JudgePosner did not address, in this
rule
of constitutional
law."
Richard
votes on Korematsu's 17. See Justice Douglas's secretary's notes on the Justices' conference peti of Congress, Manuscript Divi O. Douglas in William tion seeking a writ of certiorari, Library Papers, to Jackson, the other Justices who voted to grant Korematsu's sion, Box 113. In addition petition for a and Black Roberts. Justice writ of certiorari were Rutledge, Frankfurter, Reed, Douglas, Murphy, voted to deny the petition and Chief Justice Stone did not participate in the vote. See id.
64
Law
and
Contemporary
Problems
[Vol. 68:57
to avoid future cases of this type. (In this, Jackson's view might have leagues been may have been, despite his stance as a dis institutionally pragmatic?he on to give its constitu senter the merits, viewing the Court majority's decision
exclusion orders as, at least implicitly, something tional blessing to the military's it thereby avoided the potential dis of a success for the judicial branch because aster of being disobeyed. Jackson was doing this, perhaps, by flagging very sub tly?and
of a future case in which the Supreme Court possibility fearing?the a wartime military order as unconstitutional, down strike only to actually might an branch disobedience and inter-branch Executive thus constitutional provoke conflict lose, at least in the short term, because necessarily to enforce its commands.) In all of these respects, it lacks the practical power to offered the license Executive Jackson's branch, opinion including the mili to to those who would the and look tary, discouragement Supreme Court to re that the Court would store constitutional Jackson's limits when other branches have exceeded their war power
boundaries. it dissenting opinion drew subtle criticism from within the Court Justice Felix Frankfurter, who was Jackson's most like-minded colleague and closest friend on the Court even at this relatively early point in their tenure self.
in Korematsu.18 Frankfurter aimed brethren), wrote a brief concurring opinion a sentence or thought in that opinion at each of the three dissenters, but his comment on Jackson's effort to have it both ways?Jackson declaring his inabil
together (fall 1944 marked the start of their fourthof twelve years as judicial
order was an unreasonable exercise of the ity to say that the military exclusion to Jackson but nonetheless executive war, wage power declaring Korematsu's barbed criminal conviction unconstitutional?was and powerful: especially
To
an
makes of theConstitution time ofwar and yet to deny them constitutional legitimacy
instrument not reasonably to be attributed to hard-headed subtleties a majority had had actual If a military in war. order participation that under the means review does not transcend for conducting appropriate as would is as constitutional such action by the military be any authorized action for dialectic of whom commerce.
recognize
that military
orders
are
"reasonable
expedient
military
precautions"
in
Framers, such as war,
by the InterstateCommerce Commission within the limitsof the constitutional power

to regulate
This
passage
was
a well-aimed,
double-barreled
shot at Jackson: which Frankfurter came had
the words
"reasonably tion marks
expedient military precautions," but did not attribute to a source, recent unanimous interstate commerce
opinion,20 and the Court's national power to regulate
put in quota from Jackson's dissenting of the breadth of the explanation the same authorship.21
18. 19. 20.
See 323 U.S. Id. at 225. See 323 U.S.
at 224-25 at 245
(Frankfurter,
J., concurring).
before me, that (Jackson, J., dissenting) ("I cannot say, from any evidence were not reasonably nor could I say that expedient military precautions, if they were permissible I deny that it follows that they are military procedures, constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will and have done with it.") (emphasis be constitutional added). the orders they were. of General But even DeWitt 21. See Wickard v. Filburn, 317 U.S. Ill (1942) (Jackson, J., for the Court).
Spring 2005]
Justice
Jackson's
Korematsu
Dissent
65
West
in the Japanese American the Supreme Court's decisions cases, de as "a and fantastic in Jackson's nihilism."23 essay opinion fascinating a scholar who defended Some years later, Professor Charles Fairman, the con orders of the from the Americans stitutionality military Japanese excluding attack scribed during theWar told him that his Korematsu Coast the Executive violate As and who later became to preserve and urged dissent?which in order
on Korematsu Jackson's dissent for early commentators Although praised re of racism,22 it soon drew barbs from more its constitutional condemnation Professor in readers. now-famous his flective, scholarly Rostow, Eugene early on
view of executive of constitutional
"wrong" power inwartime emergency.24 for the rest of his life to think about Justice Jackson continued
that in practice, its Constitution"?was
a trusted friend of Jackson, read as telling "officers of Fairman
the nation, they may have to him to reconsider his narrow the issues
law and military power that he had grappled with in Kore convinced that he had, in each step of his complex matsu, he remained ap as a best he have done with this could done the civilian problem judge. proach, His stated reasons for adhering in later years to the approach he had taken in Korematsu (and reasons was more less included that per conscious) knowledge perhaps sonal: his dissent was grounded in, and itwas later reconfirmed by, the experi ences and practical wisdom of his own life. Justice Jackson's Korematsu dissent even did not resembled what he wrote in the dissent itself. His less obvious
"World War I," "Spring Creek," explicitly mention "Frewsburg," or even "FDR." for mention Nor, of course, did it "Jamestown," "Nuremberg," was still in Jackson's unfore in 1944 that undertaking and defining experience
and Civil Rights, WASH. 22. See, e.g., Merlo POST, Dec. 26, 1944, at 7. Columnist Pusey, War and at length from Jackson's criti Pusey, writing only a few days after the decision, quoted approvingly the constitutionality rationalizations of the military exclusion orders?in cisms of majority regarding address Jackson's other words, the first part of Jackson's Pusey did not, however, dissenting opinion. deci argument, which might lead to exactly the same result as the majority's judicial futility/abstention a military unsupervised conviction: and thus unrestrained sion to affirm Korematsu's by judicial review. to Justice Robert H. Jackson in RHJ Papers, Box Cf. letter from Judge Jerome N. Frank (Jan. 5,1945), I admire your opinion in the Korematsu case" but not discussing, in this one 132 (stating "how much sentence private letter, any of its specifics). 54 YALE V. Rostow, L.J. 489, 510 (1945). The Japanese American Cases?A 23. Eugene Disaster,
Justice of the Supreme L. REV. 24. Charles Court, 55 COLUM. 445, 453-54 n.30 Fairman, Associate This article, a tribute to Jackson that Fairman wrote death, is premature shortly after Jackson's (1955). a thorough, and thoroughly admiring, account of Jackson's judicial work. about In 1942, in the months the exclusion orders University. preventative Fairman lived and wrote immediately following the attack on Pearl Harbor, at in the area where then was a political science professor they applied?he
Stanford sonable also and
tional Emergency, to its sequel, the Yamashita in 1951.
ered
111 n.21 (1951).

For the most of the
L. Rev. 833 (1946), in a major lecture that Jackson wrote and deliv Case, 59 Harv. 1 BUFF. L. REV. See Robert H. Jackson, Wartime 103, Security and Liberty Under Law, recent evaluations Conscience E. Nelson, of Jackson's of the Brown Korematsu The see John M. Ferren, dissenting opinion, of Justice Wiley Story Rutledge 250 and the Jurisprudence of Legal Real
then (and later) defended General DeWitt's "evacuation" orders as rea See Charles The Law Rule and the Na Fairman, security measures. of Martial L. Rev. Jackson cited to Fairman's 1942 article and 55 Harv. 1253,1301-02 (1942). inHawaii The Supreme Court on Military Jurisdiction: Martial Rule Charles Fairman, Fairman
Salt
51 (2004), ism, 48 St. L. Univ.
Earth, and William
Court: n.156
v. Board
of Education
L. Rev.
795, 816-17 &
(2004).
66
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and
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[Vol. 68:57
and influence of all of these personal the presence experi is unmistakable, and the context thinking about Korematsu they add gives his words a rational content that may be its greatest, and itsmost humanly optimistic, attribute. seeable future. But ences on Jackson's
Ill The Essential

Robert northwestern Jackson's earliest
Jackson inHis Korematsu

forebears came to North
Dissent
America from Europe
more than one hundred years before his 1892 birth in a family farmhouse in
As the nineteenth the twentieth, century became Pennsylvania. its independence, first on its isolated Jackson grew up in a clan that valued farmland and then in a small town in southwestern New York State. As a boy, in rural public schools, as well as through his own listening, he was educated
Franklin
in various and writing. He worked reading, speaking, family and community a lawyer who achieved businesses, and, as an adult, he became great successes, first during twenty years in private practice inwestern New York State and then career that began after his political mentor in a national government and friend in 1933. president true to, and his work always Jackson remained ences of his origins and experiences. To understand Roosevelt became cial opinions, look to his life. To understand the shaping influ Jackson, including his judi Jackson's dissent in Korematsu, reflected, in peacetime in na power
of the autonomous
look to the lifeexperiences before 1944 thatgave him deep understandingsboth

individual's true freedom enormous and personal space nature of executive
and of the vast and
comparatively As he considered that juxtaposi tional government, especially during wartime. nature of civilian freedom versus the power of government itself? tion?the a theory and a faith that the power of government Jackson developed could be
II were not inevitable and during World War means of control could not be the judiciary.
even in the military realm and even during war, with thoughtful self exercised, That and core optimism that control. theory was the basis for his hopefulness as the excesses of such West Coast command episodes governmental military could be controlled, even
if the
A.
were
Jackson theCivilian
Jackson's utterly before he came to in 1934 Washington upbringing and experiences The years of Theodore civilian and deeply pacific. Roosevelt's a lawyer) first term (when Jackson became and isolation. Decades later, as he dictated lectures, Justice Jackson described
milieu
young adult), and Wilson's were times of great national peace an early draft of one of his notable and outlook
world Our then was I grew
presidency (those of Jackson's rural childhood), theTaft years (inwhich Jack

son was
as a young man:
up]
public
his
England had been waged, we had come to think of the unfortified frontierbetween
gion where
a peaceful our Nation unarmed?but unafraid. world, [In the re a century before war with close to the Canadian border, where
Spring 2005]
ourselves and our
67
as somehow of the state of friendly Canadian neighbors symbolic as living in an age of ourselves be regarded Tyranny enlightenment. to the middle as Russia, of course, in a few countries?such ages but lingered, longed and the Austro-Hungarian knew We and ty backward Germany, they were empire. for they maintained rannical armies and their governments, standing conscripted the world. We service. We military youth for compulsory as were never expected another they. We was held by the ideas of our Declaration tionalism. tendency gress Its spread of that era thanked God that we The were war. large-scale of Independence initiative not militarists, in the world
and our type of constitu was in the century that followed Waterloo the most dramatic or and thrones went down concessions its pro before granted
Henley was the poet who caught the spirit of our timeswith his inspiring lines. Wil we had were represented by the little differences between a Wilson,
Theodore liam James, unfettered pragmatist, spoke our philosophy. Such political divisions
as
a Taft and a
on life and bickered after all, had much the same outlook who, Roosevelt, I assure It was, life might era, one in which you, a very comfortable only as to details. never defeat. in which we might be hard but never hopeless, contemplate struggle but We were that? certain, or now seem to have been certain, "The And God's year's at the spring, day's at the morn: in His heaven
All's right with theworld!" war began in Europe in 1914, Jackson was a new lawyer, only twenty two years of age.26 Active in politics and public speaking, he took pacifist stands in the foreign conflict. Even and urged U.S. non-involvement in 1917, when When Jackson's laration early political hero Woodrow States that took the United Wilson obtained into the War, Jackson
Jackson spoke favorably of President Wilson, but general and distant, support. enlisted in the military, he remained in while many of Jackson's contemporaries and nearby Buffalo. civilian life, practicing law in Jamestown This youthful Jackson is the Justice Jackson who emerged as the Korematsu In his civilian-ness, he considered civilian judges to when and deferential faced assess, with, military incompetent He also understood and sympathized with fellow civilians, such as judgments. to live their lives in peace who sought merely Fred Korematsu, and free space. dissenter three decades later. like himself President Roosevelt's and General DeWitt's military programs for Japanese
the congressional dec offered loyal, but
And he declined judicially, as he had personally in 1917, to enlist?this time in

Americans living in the United States.
H. draft of his James McCormick Mitchell 25. Robert Jackson, lecture, n.d. typescript [win Box 48. Jackson was quoting lines sung by a little Italian girl ter/spring 1951], p. 4, in RHJ Papers, 1841 poem, in Robert named Pippa Jackson contin Browning's "Pippa Passes" (part 1, lines 221-28). it at the University of Buffalo on May ued to revise this lecture and, by the time he delivered it 9,1951, no longer included as Robert H. Jackson, above. The lecture was later published the material quoted 1 BUFF. L. REV. 103 (1951). Wartime Security and Liberty Under Law,
World War Armistice Day, 1918,
26.
See
generally
Joseph
E.
P?rsico,
Iand Its Violent
Eleventh
Month,
Eleventh
Climax
Day,
Eleventh
Hour:
19,22 (2004).
68
Law
and
Contemporary
Problems
[Vol. 68:57
B.
Jackson's Robert
Fre-Korematsu
Experiences
with Executive
Power
Jackson benefited consid thirty years, their stars ascended together. from Roosevelt's him which star, gave erably significant official highest-rising and from for his his ulti very high regard younger friend. Roosevelt powers, and Jackson his Solicitor General, then his Attorney General, mately made the next various House sevelt later a Supreme
in their re with Franklin Roosevelt began man was either before long perceived (except by as destined for greatness. They firstmet inAlbany when Jackson was about nineteen years old and studying to be a lawyer and was twenty-eight or twenty-nine and a freshman state senator.27 Over Roosevelt Jackson's acquaintance spective young adulthoods, and teachers) their mothers
If history had taken slightly different turns at Court Justice. successor have in theWhite Jackson become Roosevelt's points, might at the three Justice of the Chief United States.28 or, separate moments,
in 1934, he served under Roo administration Jackson joined FDR's inmetaphorical but very real political "wars" for the rest of that decade. In a wide range of realms, Jackson saw, and was part of exercising, determined almost all of his later Supreme Court colleagues, executive power. Unlike Jack When son was
in the ring itself? era?and sometimes present at ringside in the FDR run to see military and command in the civilian up against power government form of the judiciary and against civilian law in the form of the Constitution. saw in his Roosevelt administration experience years?he that marked knew?what Jackson truly gov was being a cases chal
Jackson
confidante when litigants brought three Supreme Court presidential to take the United the of the president's decision constitutionality lenging contractual commitments notwith States off the gold standard, government was in early 1935 when he learned that the present with FDR standing. Jackson Justices had been hostile to the executive-branch position during oral argument. was involved to implement, and never forgot, in preparing Jackson witnessed, to announce determination the President's publicly, in the event of adverse Su that he would act in the national this isolationist interest
erns, and gives way to, what. Roosevelt One particular
preme Court decisions, Court's rulings.29 In 1940, as President
to flout the
Roosevelt
moved
war in the European steadily toward involvement In that position, Jackson, still a War Jackson his attorney general. II, he made an attorney general whose primary civilian in his core sense of himself, became
country carefully but that would become World
27.
See
ROOSEVELT
H. generally ROBERT 2-3 (John Q. Barrett
JACKSON, ed., 2003).
THAT
MAN:
AN
INSIDER'S
PORTRAIT
OF FRANKLIN
D.
Jackson when to fill the chief 28. Three Presidents appointing they had opportunities contemplated in 1941, following the resignation President Roosevelt of Chief Justice Hughes; President justiceship: in 1946, following Truman the death of Chief Justice Stone; and President Eisenhower in 1953, follow ing the death of Chief Justice Vinson. 29. See Jackson, supra note 27, at 65-66.
Spring 2005]
JUSTICE JACKSON'S KOREMATSU DISSENT
69
and related issues.30 Jackson worked legal work addressed war preparation to accomplish and the War Department the President increased military the "Destroyer Deal" that navigated Britain, port for Great including complexities when Britain dered and evaded alone Jackson stood congressional against Hitler to assume approval in summer and
with sup
to provide vital fall 1940. Roosevelt to oversee
legal assistance or
a reluctant
immigration affairs and border of suspected threats to national tion wiretapping security, to implement the new to FBI of suspected enemy aliens alien registration law, supervise investigations to and Italy who were then in the United from Germany States, and to prepare arrest specified individuals from those groups if and when the United States and their nations of origin actually went to war.31 Court experience with President Roosevelt's deter Jackson's pre-Supreme
responsibility security, to resume Federal
of management of Investiga Bureau
mination
as a military commander event that occurred concluded with a major was still attorney In of downtown Los June Jackson south 1941, Angeles. just sent President Roosevelt soldiers into Ingle when 20,000 general marching over to the North take American Aviation aircraft wood, California Company's At the the takeover command, facility. president's production Army kept the labor disputes would otherwise have halted the pro company operating when out B-25 lines that were bombers duction the that later played vital turning in theater of War the Pacific World roles II.32
In 1944, Justice Jackson argued in the second part of his Korematsu dissent that civilian courts probably should abstain from assessing military actions dur courts that engage in such reviews ultimately will give their ing wartime because approval tomilitary actions, thus sometimes creating bad constitutional law and
Sedition Act of 1798 to the War on Terrorism

31. One ted and
30.
See generally
GEOFFREY
R.
STONE,
PERILOUS
TIMES:
FREE
of the last is a handwritten note that President Roosevelt cryptic but striking example jot General Jackson, gave to Attorney likely in spring 1941, during one of their many apparently about dealing with the threat of enemy aliens inside the United States: conversations 1. Overstay back, alien-Can't go just
280-86 (2004).
SPEECH
IN WARTIME,
FROM THE
(a) Send toLisbon

or Japan
no country
or transportation. or China.
(b) Keep here but report

once a month. 2. Criminal-Jail. 3. Resisters-non criminal. 90. on In the Library of Congress, this the subject of issues concerning Set up a camp. handwritten Franklin D. Roosevelt note, n.d., in RHJ Papers, Box Jackson's note is in a file containing FDR attorney general papers "Immobilized Ships." Foreign
A Lawyer's the Army-In Job: In Court-In the Office S. Greenbaum, 32. See Edward on the scene of the Army his role as War Department take 137-41 (1967) representative (describing over of the North American Aviation bomber production plant in Inglewood, California); Youngstown n.17 (1952) in the judg Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 648-49 & (Jackson, J., concurring ment and in the opinion President Roosevelt's and the Army's of the Court) seizure of the (discussing in those events as attorney general). involvement Aviation North American plant and Jackson's
70
Law
and
Contemporary
Problems
[Vol. 68:57
always leaving the military unregulated. career reflects Jackson's direct pre-Court of executive?including and determination C. Jackson Robert on Power Jackson and Reason
This
knowledge
perspective palpably pragmatic of the quantity, mentality, and commanders. military?power
and succeeded through a long run of practical developed a rural farm boy; a diligent student, both in school and on experiences: a lawyer learned law from two mentors; his own initiative; an apprentice who of his skilled advocacy, because who succeeded advising, and writing; a politi he was cian who comes; Every getting found
when they did the job at hand, and ideas made

useless
that are measured and policy out the successes by elections on a results. of national based and accomplished prominence figure in experience, in the realities of life was grounded aspect of Jackson's sense to Jackson when they worked, from here to there. Things made in poli includ
in the marketplace, in the farm field, in the community, proved was in his judging, Jackson's framework tics, or in the law. Pragmatism ing inKorematsu. Jackson also was
least sense to him when they
a brilliant, reflective thinker about the experiences he lived saw a choice be life constantly offering As he made his way, he and observed. two tween two competing forces, two contending approaches, polar positions. these poles and labeled At the level of greatest generality, Jackson "power" "reason."
that the differences In specific contexts, he saw them as embodying in and minority, selfish and selfless, majority group and individual, separate and principle, capacity and self-restraint. Jack sider and outsider, expediency son regularly described these poles in his speaking and writing, both on and off
inhis judicial thebench, and theycame to be reflected,explicitly and implicitly,

Jackson and Court first spoke formally in the Supreme to constitutional and their relevance chamber about
opinions. Robert "power"
on adjudication as the newly appointed 1, 1940, when, attorney general, he addressed February of the Supreme Court's 150th anniversary.33 the justices on the formal occasion "reason" Jackson Court
branch and the bar he was representing, Jackson spoke about of govern the other branches the judiciary fits with, and depends upon, reflect: ment and the democratic system they However well theCourt and itsbar may discharge their tasks, the destiny of thisCourt and the Executive how
is inseparably ment. Judicial linked to the fate of our as we have democratic functions, evolved them, govern system of representative can be discharged only in that kind
the speech on this occasion by describing began his very eloquent how itswork had changed as the in its very early days. He then discussed less a living and contemporary and more a "became Constitution thing?more then to the respective work of the Court he was addressing tradition."34 Turning
33. 34.
See
309 U.S.
v-xii See id.
Court was
(1939).
With
the exception
of the newly
appointed
Justice Murphy,
the full
present. Id. at VI.
Spring 2005]
71
more to reason. The future of the Court may depend the competence upon power of and to solve their problems the executive branches government legislative is its own. the merit which and in time than upon quately
of society which is willing to submit its conflits to adjudication and to subordinate

of ade
dicial
to the Court and many ju his appointment years passed, encompassing before Jackson in that Korematsu, decisions, returned, again including reason. to his touchstone of and In courtroom, 1945, just power concepts May announced the appointment of Justice Jackson to days after President Truman Five Nazi war criminals in Europe, Jackson closed a dissenting opinion by his and his between them: "Power stating polar positions preference invoking its fiat is beyond appeal."36 should answer to reason none the less because Less then six months
prosecute
he had led the Allies to create:

May world it please Your Honors:
on these the same perspective later, Jackson voiced as to he in forces and life his open majestic approaches contending explained, of Justice at Nuremberg, the legal proceedings that ing statement in the Palace
The privilege of opening the first trial in history for crimes against the peace of the
imposes ish have been tolerate a grave responsibility. The wrongs which we seek to condemn and pun so so calculated, cannot that civilization and so devastating, malignant, cannot because it survive their being their four That ignored, being repeated.
most
great nations, flushed with victory and stungwith injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the
significant tributes that Power has ever paid to Reason.37
Jackson Court
in 1946. In his famously stinging Chenery II dissent re to administrative of the limits agency actions, for ex judicial deference garding a on ac the difference between two-level reflection ample,38 Jackson penned
and reason, from Nuremberg
on the relative places of power his perspective and on the interrelationship between them, after he returned to the continued to voice
35.
Id. at Vil.
see also Jewell Ridge and Frankfurter, JJ., dissenting); (Jackson, J., joined by Stone, C.J., and Roberts 325 U.S. 897 (1945) in Coal Corp. v. Local No. 6167, United Mine Workers, J., concurring (Jackson, for rehearing). Jackson's solo opinion in this case went unnoticed denial of petition second, by the in the days and months after it was handed down on June 18, 1945, but the press and general public next ment 1946 death, President Truman's June 1946 appoint spring, following Chief Justice Stone's April to succeed of Chief Justice Vinson Stone, and Jackson's ensuing public attack from Nuremberg came to be understood as quite revealing of the se on Justice Black's ethics, the Jewell Ridge opinions rious personal divisions among many of the justices.
36. JewellRidge Coal Corp. v. Local No. 6167,United Mine Workers, 325 U.S. 161, 196 (1945)
v. Chenery Comm. 332 U.S. & Exchange 38. Securities 194, 210-18 J., Corp., (1947) (Jackson, I realized J., dissenting) (stating, "I give up. Now fully what Mark Twain meant joined by Frankfurter, I don't understand it'" and stating his inability in this when he said, 'The more you explain it, the more case "to comprehend the processes reach a given result"). Earlier, when Justice by which other minds in this case on June 23,1947, the Court's had delivered Justices Frankfurter and Jack opinion Murphy son had issues "a response to the briefly stated their dissent, the lack of time for them to prepare adequate ... the rule of law in its application to the administra raised by the Court's opinion concerning] in reviewing and the function of the Court administrative tive process and their resolve that action," Id. at 209. Over "detailed the ensuing summer, Jack grounds for dissent will be filed in due course." on October 6,1947. See id. at 210.
THE N?RNBERG CASE 30 (1947). 37. See ROBERT H. JACKSON,
new Term
son draftedand polished his dissent,which Frankfurterjoined and theyfiled when theCourt began its
72
Law
and Contemporary
Problems
[Vol. 68:57
tions that reflect mere demned reasons
Amendment's Power extrajudicial
previous Court majority now had the power to do so.40 Jackson also implicitly employed to cite just one more example, when he coined the the power/reason dialectic, to explain the core of the Fourth and detached "neutral magistrate" phrase Warrant and reason writing. for civilian liberties.41 protection to also continued be present in Jackson's post-Nuremberg on before that he worked One of the very final projects Clause
in reason: he con power and those that are grounded an administrative for its without agency power offering any exercising the Supreme Court for changing its for its action,39 and he condemned case a new to four earlier because this very years simply approach
his sudden death inOctober 1954was draftingtheEdwin Lawrence Godkin lec

in February tures he had agreed to deliver at Harvard University 1955. In those summer and early fall of 1954, drafts, which Justice Jackson prepared during the saw he between Korematsu and his views on the he made relationship explicit
the Supreme Court majority's Korematsu power and reason. After describing as an of the instance decision judiciary deferring to the mili quite generously his final liberty,42 Jackson concluded tary's view of what best served ultimate sesquicentennial. the United States, Jackson '"Judicial functions, as we have evolved them'"
Court's'
draft lecture by quoting from his own 1941 speech on the occasion of the
in reiterated, "can be discharged only in thatkind of societywhich iswilling to submit its conflicts to
to reason. de The future of the Court may and to subordinate power adjudication more of the executive and branches of the govern upon competence legislative pend and in time than upon the merit which is its ment to solve their problems adequately own."
When
Jackson's
Godkin
lectures were potential
ally his finalpublic words on law itself.
ticulation
of the human
published to subordinate
in 1955, this ar posthumously reason to became liter power
assertion of the Court approves the Commission's truth is that in this decision 39. Id. at 216 ("The [i.e., by corpo power to govern the matter without law, power to force surrender of stock so purchased itwill, and after they had filed a voluntary rate officers and directors reorganization plan] whenever if it chooses. The reasons which will lead it to take one course such acquisitions power also to overlook as against the other remain locked in its own breast, and it has not and apparently does not intend to to decide This administrative this power them to any rule or regulation. commit authoritarianism, in so many words_"). without law, iswhat the Court seems to approve which administrative order sustains the identical Id. at 209-10 ("The Court by this present decision in in the order, no additional evidence being no change only recently it held invalid-There it is clear that there has been a shift in attitude of relevant the record and no amendment legislation, of the Court when the case was first here and that of those that of a controlling membership between in this second review."). who have the power of decision 40. v. United See generally Hon. 10,14 (1948) States, 333 U.S. (Jackson, J., for the Court). at the Annual State Magis Conference and Banquet of the New York Rosenblatt, Speech 4-5 (Dec. 2004) in 44 The Magistrate Jackson's trates Association coinage (describing (Oct. 5, 2004), "I cannot think of and detached magistrate" in Johnson and concluding, of the "neutral formulation, that identify what the public expects of judges than neutral and detached."). better words 41. Johnson M. 42. 43. Robert H.
Albert
75, 92 n.92 (1955).
Jackson, (quoting
The 309 U.S.
Supreme
Court
in the
American
System
of Government
Id. at 82-83
v, vii (1939)).
Spring 2005]
73
What power
do so.
Jackson
stood
for and believed but that reason
can be exercised,
to his core, in other words, was that to declines sometimes, and nonetheless,
D.
Jackson's What
Optimism Justice and Jackson the power in general, also in and described really recognized candidly of the Executive in the form of General branch, and the powerlessness of the Supreme that DeWitt's directives strongly that reason makes Court in But reflected
civilian was orders
Korematsu DeWitt's
suspected comparison. less than the thinking, judgment, and restraint do little about
Jackson
it from the bench, Jackson's dissent gave hopeful voice to the from within the realm of government and military could, prospects out He make its held the that reason itself, power prospect impact. explicitly that reason could play its reflective, self-restraining role inside the military sons of military officers and the Chief Executive who commands itself, in the per them:
unscrupu restraint upon as in the past, and
these insights did not reduce Jackson to pessimism. While he believed he could
possible.
must be their responsibility to the political judgments of their contemporaries and to

the moral judgments of history.
ever let command of the war power If the people fall into irresponsible no power to its restraint. the courts wield The chief lous hands, equal in the future command the physical forces of the country, those who
clusion
and they need not exercise their powers, as General DeWitt had. behave, soon after In his Nuremberg Jackson Korematsu, got to be, and experience he got to see a number of military officers being, the kinds of Executive-branch actors who were the hope of his dissenting opinion. IV
In other words, Jackson's dissent came to a hopeful con seemingly pessimistic and military commanders: about our commanders-in-chief We get to to not the former. And thus the Jackson and need elect, latter, knew, change,
Jackson After Korematsu

A. Jackson at Nuremberg
Justice Jackson ac Germany, following the Allied military victory in Europe. after Jackson had less than five months assignment cepted President Truman's read his Korematsu dissent from the Supreme Court bench. He absented him self from the Court bring Indeed, law and due Jackson and went, first to England to the wreckage process and
or Chief Justice, he did, Justice Jackson never became President Although a historical to his design, become death but pursuant shortly after Roosevelt's one: was at chief Jackson the American of prosecutor category Nuremberg,
in 1945 and 1946 was
to Nuremberg, to and ultimately criminal perpetrators of war. of the post-war international
the architect
44.
Korematsu
v. United
States,
323 U.S.
214, 248
(1944)
(Jackson,
J., dissenting).
74
Law
and
Contemporary
Problems
[Vol. 68:57
legal system the European
now
leaders and other alleged war criminals in surviving Nazi theater were defended, prosecuted, charged, judged, and, for those who were convicted, punished.45 in 1945 that Justice Jackson, in going to do what we It was well recognized summarize tary defeat
in which
military
directly war.46 He was
of work, he had for the first time in his life the experience emberg, prosecutorial a officer?the War the President, military being gave through Department, rank of a senior general, which gave him command au Jackson the assimilated sector of occupied Germany. power in the American thority and administrative More in the trial process he substantively, what Jackson did at Nuremberg in cases his of the and American individuals prosecution designed against Nazi was to exercise some of the reason and and organizations less than something
a trial system and structure that devised, with Allied counterparts, an international military tribunal. And it is semantically interesting to note in this diplomatic, that while Jackson was engaged and, at Nur organizational,
as "Nuremberg," was embarking on a military task. The mili of Germany, its subsequent unconditional surrender, and the Allied was of context for the his work. As Jackson put it Europe occupation in his closing statement, the Nuremberg trial occurred during a state of
the full power that a military position embodies. His core vision and accom was on a real trial?meaning to insist due process and plishment at Nuremberg as happened the genuine possibility of acquittal, in some cases. He refused to conduct a trial in form that really would have been Executive action dispatching to predetermined adversaries fates. vanquished and Korematsu, had, before both Nuremberg given voice to the rea view of the legal process that they have in common: the real judicial a on to is he and In Ko law evidence.47 function, explained, provide judgment Jackson's them rematsu, this view became skepticism about judges permitting or cannot selves to be used militarily when not will they provide judgments on At Nuremberg, law and evidence. this view animated Jackson's confident crea Jackson son-based tion of an independent tribunal and contributed a as the Executive court. He, ing before such to his comfort about branch and military prosecut leader at
Memoir
46.
45.
See See
See also Woods
v. 138,147 Cloyd W. Miller Co., 333 U.S. (1948) (Jackson, J., concurring) ("We are still in a state of war ... [and] I find no reason to conclude that we could find fairly that the pre technically sent state of war ismerely technical. We have armies abroad exercising our war power and have made no peace our principal enemies."). terms with our allies, not to mention 47. quoting in U.S., Jackson Says, WASH. See Cleavages Widen at M4 POST, Jan. 23,1944, Jackson's State Bar Association). speech the previous day to the New York (reporting on and
JACKSON, supra note 37, at 121-22: not overlook the unique and emergent character of this body as an International It is no part of the constitutional Tribunal. of internal justice of any of mechanism Military the [London Agreement] nations. has unconditionally but surrendered, Signatory Germany no peace are still technically The Allies in a state of treaty has been signed or agreed upon. war with Germany, the enemy's political and military institutions have collapsed. As although a Military Tribunal, of the war effort of the Allied it is a continuation nations. [W]e should
(1992); Eugene C. Gerhart,
generally
TELFORD
TAYLOR,
ANATOMY
OF
THE
America's
Advocate:
NUREMBERG
Robert H. Jackson (1958).
TRIALS:
PERSONAL
Spring 2005]
Justice
Jackson's
Korematsu
Dissent
75
went to and he was electing into that court because he wanted, Nuremberg, on law and evidence the real by judges. judgment permit, own rhetoric and im to Nuremberg in Jackson's Korematsu also connects surely had his Korematsu in his summation, Nuremberg spoke, Adolf Hitler a "loaded gun."48 agery. B. Jackson Jackson's and and theMilitary work during discussions his time at Nuremberg included regular interactions with his American military peers, including Gener He dissent in mind when he wrote and then the charge that the defendants had given
substantive
J. Donovan, William als Dwight Eisenhower, Lucius Clay, and others. Private and reflected indicate that among the topics Jackson explicitly discussed papers on while working on the military-power side of the divide were the military is sues and policies that had produced Korematsu. on paper. moments occurred of these One Truman had Jackson he received described In spring 1945, just days to the task of prosecuting Nazi soldier who was after war
President criminals, Pacific. He
assigned a letter from an American his combat seventeen
tary forces during the previous was a "former attorney" who preme This soldier
When
and other experiences months. He
Court
Reporter, let the civilian
and
ten itright:
I finished reading
was Su company's receiving West publishing that he recently had received and read Korematsu. Jackson know, from the battlefield, that he had got
opinion], I was so shocked....
fighting in the fighting Japanese mili then explained that he
[the Court's
in the battle of the government. We full well, perhaps realize better on centralized at home, how much is dependent Indeed, leadership. as a jus too ready to utilize the concept of "military necessity" of us are perhaps many for the government in shortening the war. tification powers which may help exercising than those powers of you Because battles we are in the last resort and return to the States a group to resume of young our place men who wish to end selfish in society. Our
of the war
with any broad reading As a member of the armed forces I am in fullest sympathy
which will help us defeat the enemy. might be said, support that
But the instant decision It introduces racialism, the very is the type of blow we racialism from which are fighting we
the bloody it interests,
cannot
recover
so strenuously
so easily. to eliminate.
48.
Jackson's
summation
the following paragraph: What these men have
regarding
the conspiracy
charge
against
Nuremberg
defendants
included
in it. and every man at the time highlighted Jackson's "loaded supra note 37, at 153. Although press accounts as Hitler, Asked Leaders see, e.g., Death for Nazi Says Jackson, N.Y. gun" metaphor, [sic], Guilty at 4,1 have found none that connected this Jackson "loaded Times, gun" at Nuremberg July 27,1946, to the "loaded weapon" that he had had warned against inKorematsu. JACKSON,
acts are their acts. is that Adolf Hitler's overlooked It was these men of others, and itwas these men of others, who built up Adolf among millions leading millions not only innumerable lesser decisions Hitler and vested in his psychopathic but the personality intoxicated him with power and adulation. issue of war or peace. supreme They They fed his It was left to Hitler to his fears. They put a loaded gun in his eager hands. hates and aroused His guilt stands admitted, by pull the trigger, and when he did they all at that time approved. some defendants But his guilt is the guilt of the whole dock reluctantly, by some vindictively.
76
Law
and
Contemporary
Problems
[Vol. 68:57
The
in the South: all laudatory let us admit. Negroes the war power and are not strictly analogous. volve has however
in recent years?at Court least from the scattering I have been Supreme reading to do in the jungles and tropics?has been preaching tolerance. It has religious it has struck down invalid the "flag-salute" declared discrimination statutes; against able To be But sure, these cases the spirit behind failed the decisions
to in
is certainly pertinent. In deciding the [Fred] Toyosaburo Korematsu cases, theCourt

principles and an American citizen of his rights utterly deprived are included within which the word "citizen." the other Justices the who dissented from devitalizing the consti
tutional To convey which
soning is hardly deserving of criticismexcept as to reveal the evils lurking in it, letme
thanks and my is being engrafted thanks our onto of many others for exposing constitutional structure.4 the vicious doctrine
you
the majority,
whose
specious
rea
Another point
of these moments cases
in the defense
dling met there with General Army Commissioner enna. dition issued Japanese in the War's
the cross-examination
Mark
on April 15, 1946. At that time, at a at Nuremberg when Jackson was not personally han a side trip to Austria. of any witness, he made He occurred Clark, who had commanded at that the American 5th High in Vi in ad Coast. campaign Austria. They met at Clark's headquarters and that he in detail, Jackson discussed topics John DeWitt and commander and of the American Clark reported West and was time American
Italian
Among to the Nuremberg four years
in occupied the various earlier
trial, was General as military
the orders he had
General Clark told Jackson of his 1942 opposition toDeWitt's orders deporting
Americans to inland areas
American
view, itwould have been militarily sufficientin 1942 to detain only Japanese
camps.50
that, in his
effective The
Battalion, which had foughtunder Clark in Italy, had been loyal and Infantry
soldiers.51 point is not either that General or as he Clark's The views were perfectly correct or is that "General" Jackson
leaders, while moving others back from coastal areas but letting them live normally. Clark also reported to Jackson that the Japanese American 100th
point spoke in confidence with a real general, that a military perspective John DeWitt, that all generals are not General does reason can not always insist that power be exercised to that and lead self fully, commander's restraint in a military Jackson's decisionmaking. experiences, as U.S. cor with Clark and others as with his own powers Chief of Counsel, in Europe,
enlightened, found confirmation
in 1942
in 1946.
Box
Felix F. Stumpf to Justice Jackson (Air Corps) (Apr. 18, 1945), in RHJ Pa Court work with his new swamped with juggling his end-of-Term Supreme on the letter and later signed a with thanks R.H.J." scrawled assignment, "Acknowledge presidential the writer and said Jackson was interested in very short note, composed by his secretary, that thanked Felix F. Stumpf (May 5,1945), in RHJ Papers, See letter from Justice Jackson to Lieutenant his views. 49. Letter pers, Box 132. Jackson, 132. See generally PETER IRONS, supra to a congressional that the U.S. committee Stimson that he (Clark) of War Henry 50. note 1942 testimony 5, at 51, 61 (reporting Clark's February Pacific coast was well-defended, and his advice to Secretary of the "mass exodus" disapproved proposed by General to have unit in
from Ist Lt.
DeWitt).
51. them
RISK See generally MARK W. CLARK, CALCULATED 220-21, 418 (1950) ("I was proud in the Fifth Army," and further describing the 100th Battalion, the first Japanese American the U.S. Army, as high-performing, brave, skilled, and highly decorated.).
Spring 2005]
77
roborated the horrible
his Korematsu
belief
realm of war nonetheless
that military
commanders would allow
can find it in their own
to do something less than their full powers lead them to perpetrate. otherwise V
with all their power in rational capacities and their fears might
JACKSONONKOREMATSU fall 1946. He

pen to write Following Nuremberg, opinions Justice Jackson returned
that expressed in strong, often personal, perspectives at his death 62 in until sudden October 1954.52 age prose, uniquely eloquent and reaffirmed his those years, Jackson openly discussed Korematsu During to protecting civil the approach conviction regarding the approaches?certainly liberties, and
served with skill and distinction,especially inwielding his own
to the Supreme
Court
in
inhis 1944 opinion.

Jackson
less so the approach
to defining
judicial
power?that
he had
taken
A.
on Korematsu
as a Civil Liberties
Decision
as a civil liberties decision. In a always viewed Korematsu and Under he "Wartime that de Law," Security Liberty major public speech, a was in time when the the Korean United States involved livered inMay 1951, Jackson described War and Cold War combats the against global communism, Justice Jackson Court's wartime
that I fear will long be most useful to justify opinion as "the precedent invasions of civil liberties."53 His own dissent, by contrast, was one of true about constitutional civil liberties in which he retained the statements
pride. When liberty cases
a Smith College senior wrote to ask him, for example, about "civil in which you have rendered an opinion," Jackson jotted a list of nine case names in the margin of her letter for his secretary to use in composing a reply for Jackson Jackson to sign?the first of these cases being to Executive "Korematsu."5*
B.
on His Korematsu
Approach
and Judicial Power
in private reflection and writing, and then Justice Jackson also confronted, in Korematsu. in public speaking, the tougher part of his dissenting opinion to a large crowd "Wartime Security and Liberty Under Law" Jackson delivered
at theUniversity of Buffalo, a school with which he had long and deeply per
sonal connections.55 The speech, which he drafted personally and rewrote many
Robert H. Jackson, generally Philip B. Kurland, Court 1283-1311 & Fred SUPREME (Leon Friedman Justice of the Supreme Court, supra note 24. 53. Jackson, supra note 25. 52. See States
in IV THE L. Israel
JUSTICES 1997);
OF
THE
UNITED Associate
eds.,
Fairman,
Jackson's 55.
Elsie L. Douglas letterfrom

See list of cases). John Q. Barrett,
54.
Letter
from Judith Plesser
to JudithPlesser (Oct. 6, 1952), inRHJ Papers, Box 18 (alphabetizing

Portrait for Jamestown, eA Magnet in the Room," 50 BUFF. L.
to Justice
Jackson
(Sept.
30, 1952),
in RHJ
Papers,
Box
18; accord
A Jackson
REV. 809, 810-11 (2002).
78
Law
and
Contemporary
Problems
[Vol. 68:57
times before
it reached
Communists, emergency powers under various foreign constitutions, President of habeas the military com Lincoln's corpus during the Civil War, suspension and the protection the rejection of Lochnerism, mission that tried his assassins, of personal Korematsu:
pends,
and difficultpolitical and legal topics, including theWorld Wars, American
final form, considers
many
complex
historical
episodes
rights. And
then Jackson
spoke
directly
about
the conundrum
de lib not
of
on whose I suppose the American eternal people, liberty ultimately vigilance are well agreed that what they want of the courts is that they both preserve so that we do to reconcile the two needs erty and protect security, finding ways
lose our heritage indefending it.

The issue security and of constitutional who evidence that usually comes liberty. The
between lative
of officials dinary
What does itdo then? The best study of the impact of such claims upon the judicial
v. United is Korematsu the precedent that I fear will States, process during wartime to justify wartime not a case useful of civil liberty. It was invasions long be most the Court was asked by a citizen to obstruct of where execution authorities by military a case where a military to become, order. It was the Government asked the Court it a military to enforce the citizen, by criminal self, the agency process, against to remove That policy was all persons of Japanese dubious constitutionality. born American from the West native Coast and herd citizens, including camps in the interior. When enforcement policies of that measure advocated, came Supreme be wholly One Court, three judicial were none policy ancestry, them into
is not a clear and simple one however, this: Measures vio get it ismore nearly are to claimed be to in the necessary rights judgment security, are best in a or to know, but the necessity is not provable position by and the court is in no position to determine the necessity for itself. to the courts, issue as we
of
before the squarely can be said to of which
satisfying. . .. held
and detention of citizens of Japanese exclusion constitu ancestry was it reasoned, detained because authorities Korematsu, military to take proper invasion and felt constrained "The need security measures. to say that the "actions for action was great, and time was short." The Court refused ... refused were unjustified" course to yield to and held them constitutional. Another measure the doctrine of military and declared the "a clear of consti violation necessity view tionally feared an valid. to me let the chips fall where tutional It seemed then, and does they would. rights," was an unconstitutional one which that the measure the Court should not bring now, a doctrine as a prece too useful within the Constitution of necessity, by any doctrine dent. I thought the courts should not lend themselves to its enforcement and we
to enforce authorities the measure military by their own force and author attempted was should not attempt active since the West then a Coast interference, ity, the Court can to I theater for in add dissent the case, proper my military operations. nothing to admit come close to a suspension that my view, if followed, would of though I have the writ found of habeas proper corpus for military or recognition control. of a state of martial law at the time and place
should discharge the prisoner from custody under judicial commitment. But had the
C.
Robert
Jackson
and Fred Korematsu
In his optimistic conclusion, Korematsu was, to Jackson, a case about the ci saw regular civilians as having a the Jackson of United States. people It kind of front-end, self-governing power to prevent abuses of military power. vilian
56.
JACKSON,
supra
note
24, at 115-16
(footnote
deleted).
Spring 2005] was
79
"the people," he wrote, who should, and thus in his view presumably could, not "ever let command of the war power fall into irresponsible and unscrupu ... ."57And lous hands itwas the prospect that military commanders might care about
that judgments of their contemporaries,"58 public reaction, "the political some that these would Jackson executive branch officials restrain gave hope themselves when deciding how to exercise their enormous powers. But the case was not, for Jackson, merely about nine civilian justices, nor
moral
was itonly about 120,000 civilians interned in thiscountryand his hope that the
a mili force, the reason, of liberty interests such as theirs could penetrate case seems to mindset and to lead The self-restraint. also tary power military have struck Jackson individually at the level of Fred Korematsu, the individual litigant. Jackson's opinion crime, wrote seems to articulate "consists
matsu's
this personal Kore identification. of state in the Jackson, merely being present whereof he is a citizen, near the place where he was born, and where all his life he has lived."59 Jackson's dissenting opinion does not mention Warren County, Pennsylvania, County, New or the adjacent Chautauqua his place of birth and early boyhood, went to where he York, school, raised his family and grew up, more can be little doubt, however, for than law There twenty years. practiced to citizen Korematsu's that Jackson's deep commitment constitutional right not and his regional roots also clearly inmind. that was, decades later, reciprocated quite
written with citizen Jackson This is an identification
to be classified a criminal simply for livingwhere he had lived all his lifewas
beauti
I firstmet and had the opportu life. When fully on that very land of Jackson's to in Fred Korematsu in 2002, he mentioned interview County nity Chautauqua reason led the people whose with deep gratitude his lawyers during the War, a them to take his side in his legal battle to be free American. He mentioned
And it trial and appeals. then, in a wonderful layman's statement that captured as Mr. Korematsu three others whom he been his named all, regarded having Frank Murphy, Owen Roberts, and Robert Jackson.60 "lawyers":
first Ernest Besig, theACLU
lawyerwho stood by him throughhis wartime
57. 58. 60.
Korematsu Id. at 243. Interview
v. United
States,
323 U.S.
214, 248
(1944)
(Jackson,
J. dissenting).
59. M
with Fred
Korematsu,
at the Robert
H.
Jackson
Center,
Jamestown,
N.Y.
(Sept.
27,
2002).

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Duke University School of Law

A COMMANDER'S POWER, A CIVILIAN'S REASON: JUSTICE JACKSON'S KOREMATSU DISSENT

characteristic Supreme were, who much

enforcement by judging them to be authorized by theConstitution. We

? 2005 by John Q. Barrett Copyright

1. 323U.S. 214 (1944).

of law itself: it is the codified product of human beings struggling, by employing

the vast nature

had unique that experiences of executive?including

sibilities of being?one Jackson was never

JUSTICE JACKSON'S KOREMATSU DISSENT

and constitutional citizens to discuss had

that he "stop[ped] with Hiraba later, when the Court announced

of Justice Frank Murphy,

In his dissent's Japanese

joritydecision to uphold the constitutionalityof themilitary orders excluding

the malignancy Coast:

such as Fred Korematsu

der, however Even during cial opinion rather

Division Manuscript 6. Korematsu, 7. 8. racism" braced /?/.at245-46. See and

id. at 239-40 described

JUSTICE JACKSON'S KOREMA TSU DISSENT

troubling not constrain

least those national

that recognize security matters

their incompetence in wartime?would

to second-guess thus defer, quite opinion:

examination, try to look

that it danger in confi made the mere decla from a

any real alternative the order that it was

looking to embrace Justice Jackson's racist exclusion of Japanese Americans

BOSIA, The General

and I 36-37, 74,102 (1971) (personalizinghis battleswith General DeWitt but

JUSTICE JACKSON'S KOREMA TSU DISSENT

dissenting alone. to enforce made reasonable

Although Jackson declared thisultimate position bluntly,he did very little

that has no place in law under the prisoner."15 and discharge

14. M 15. M 16.

Pragmatism & Democracy

293, 294 (2003). Interestingly, JudgePosner did not address, in this

Framers, such as war,

by the InterstateCommerce Commission within the limitsof the constitutional power

shot at Jackson: which Frankfurter came had

"reasonably tion marks

opinion,20 and the Court's national power to regulate

18. 19. 20.

See 323 U.S. Id. at 225. See 323 U.S.

view of executive of constitutional

that in practice, its Constitution"?was

a trusted friend of Jackson, read as telling "officers of Fairman

Stanford sonable also and

tional Emergency, to its sequel, the Yamashita in 1951.

111 n.21 (1951).

51 (2004), ism, 48 St. L. Univ.

Earth, and William

795, 816-17 &

Ill The Essential

Jackson inHis Korematsu

look to the lifeexperiences before 1944 thatgave him deep understandingsboth

and of the vast and

presidency (those of Jackson's rural childhood), theTaft years (inwhich Jack

JUSTICE JACKSON'S KOREMA TSU DISSENT

the congressional dec offered loyal, but

And he declined judicially, as he had personally in 1917, to enlist?this time in