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The ‘Korematsu’ Dissenters

In response to:

How the Justices Get What They Want from the December 8, 2011 issue

To the Editors:

In Robert W. Gordon’s review “How the Justices Get What They Want” [NYR, December 8, 2011], he writes that “only Justice Frank Murphy voted to overturn the military orders” sustained by the Supreme Court in Korematsu v. United States (1944). In fact the vote was 6–3, with Justices Owen Roberts and Robert Jackson joining Justice Murphy in powerful dissents. Roberts wrote, “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.” Jackson, after a lengthy discourse on the “limitations under which courts always will labor in examining the necessity for a military order,” argued that in this case, “I do not think [the courts] may be asked to execute a military expedient that has no place under the Constitution. I would reverse the judgment and discharge the prisoner.”

Robert M. Johnstone
Professor Emeritus of Politics
Earlham College
Richmond, Indiana

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