A Commander's Power, A Civilian's Reason: Justice Jackson's Korematsu Dissent

I INTRODUCTION Robert Houghwout Jackson was a justice of the United States Supreme Court during the years of World War II. This article considers his great but potentially perplexing December 1944 dissent in Korematsu v. United States, (1) in which he refused to join the Court majority that proclaimed the constitutionality of military orders excluding Japanese Americans from the West Coast of the United States during the War years. (2) Japanese American internment history and the general public memory it shapes recall today that Justice Robert H. Jackson in Korematsu was, with his characteristic candor and gifted writing style, one of three--sadly, only three--Supreme Court justices who recognized these military policies for what they were, who called them by their racist name, and who refused to assist in their enforcement by judging them to be authorized by the Constitution. We recall much less often that Justice Jackson also wrote in Korematsu, with explicit resignation about judicial powerlessness, that civilian courts, up to and including his own Supreme Court, perhaps should abstain from attempting to hold military commanders to constitutional limits in wartime. 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 coherent position. (Readers can and should see this for themselves--reading this article is no substitute for reading Jackson's compact six-page dissent.) Jackson's dissent is also biographical and, to that extent, deeply and personally pragmatic. It emanated in part from his outlook and upbringing as quintessentially a rural American civilian who viewed life as pacific and individually autonomous, and who saw our law as most workable in such times of peace and unthreatening personal freedom. It was grounded as well in his very special, direct, and formative experiences with executive power. In the decade preceding 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-close witness to, the unstoppable nature of the Executive power that reaches its apex in military command. Jackson's Korematsu dissent also fit into his general view of people and power and into what he saw throughout his life as the idea of law itself: it is the codified product of human beings struggling, by employing their rational and selfless capacities, to impose some limits on what they and their governments otherwise could perpetrate with the vast powers they possess. And despite Jackson's apparent institutional pessimism about the power of courts to protect constitutional liberties from military command threats during wartime, his Korematsu opinion also displayed, and had as part of its bottom line, his characteristic optimism about U.S. democracy, from its smallest people to its most powerful leaders. In his years after Korematsu, Justice Jackson had unique experiences that confirmed his dissent's perspective on the vast nature of executive--including military--power, and his hopeful view that the people who possess such power are capable of restraining themselves in its exercise. At Nuremberg, in particular, where Jackson was the chief American military prosecutor of the surviving Nazi leaders following Germany's unconditional surrender to the Allies, he worked closely with military leaders who exercised such restraint, and he himself functioned as--and tried with considerable success to live up to the responsibilities of being--one of those powerful commanders. Jackson was never fully satisfied with his Korematsu opinion, but he knew two things from its writing in 1944 until the end of his life ten years later: he had properly identified the unconstitutionality of defining crimes based on race, and his candor about the weakness of civilian judicial power as a limit on wartime executive power was superior to any alternative judicial approach that his colleagues had offered or that he could imagine. …