Home Civilian based defense What did the dissenting judges think about the power of military authorities?

What did the dissenting judges think about the power of military authorities?


There’s a lot to cover when learning about modern history and the subject of the Korematsu court order against the United States in World War II. Among them is the question: “What did the dissenting judges think of the power of the military authorities? On Quizlet and other quiz study sites, you’ll find 4 typical choices:

  • The army lacked strength because so many men had gone to fight
  • The military should declare martial law in times of war
  • Military powers should never be limited in times of war
  • There should be limits to military action when martial law has not been declared

Among these choices, you will earn a rating if you register or check “There should be limits on military action when martial law has not been declared”. And that was on the grounds that the Korematsu v. United States court ruling was racially discriminatory.

However, to make sure you can answer the questions that require a longer write-up (if you come across them), keep reading. We will dive deep into the Civil Liberties Act of 1988 and the Exclusion Ordinance within the power of Congress.

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First, we need to look at the background context to get a full understanding.

After the Japanese attack on Pearl Harbor, the US War Department established military zones, which could exclude some or all Americans. This was authorized by President Franklin D. Roosevelt based on Executive Order 9066 in February 1942.

The Western Defense Command responsible for coordinating the defense of the west coast then ordered anyone of Japanese ancestry, including non-foreigners and foreigners, to be resettled in internment camps.

But Fred Korematsu, a 23-year-old Japanese American, refused. He believed it was a violation of the Fifth Amendment.

Yet the judges ruled that protection from espionage by Japan should take priority over the rights of Japanese Americans. Korematsu was arrested and convicted. This decision was criticized for its racial discrimination and critics were called dissenting judges.

1. Quick Facts

  • Case Name: Fred Korematsu v. United States
  • Chief Judge: Harlan F. Stone
  • Associate judges: 7
  1. Owen Robert
  2. Hugo Black
  3. Stanley F. Reed
  4. Felix Frankfurt
  5. William O. Douglas
  6. Frank Murphy
  7. Robert H. Jackson
  8. Wiley B. Rutledge
  • Majority: Black, Stone, Reed, Frankfurter, Douglas and Rutledge
  • Competition: Frankfurter
  • Dissenting: Murphy, Roberts and Jackson

2. The timeline

  • March 21, 1942 – Congress acted on bill to authorize implementation of Executive Order 9066
  • March 24, 1942 – The Western Defense Command has begun issuing Civilian Exclusion Orders. People of Japanese descent (non-foreigners and foreigners) were required to report to designated assembly points
  • May 19, 1942 – Civil Restraining Order No. 1 has been issued. Then Japanese Americans were forced into relocation camps

Up to 120,000 Japanese Americans have been forcibly deported and confined

More than 110,000 Japanese Americans have been sent to resettlement centers in remote parts of the country

Dissenting judges

There were 3 dissenting judges. Their names were Judge Murphy, Judge Roberts and Judge Jackson.

1. Justice Frank Murphy

He served as Associate Justice of the Supreme Court from February 5, 1940 to July 19, 1949.

Here is a photo of him:


2. Judge Owen Roberts

Who served as Associate Justice of the Supreme Court from June 2, 1930 to July 31, 1945.

Here is a photo of him:


3. Justice Robert H. Jackson

Who served as Associate Justice of the Supreme Court from July 11, 1941 to October 9, 1954.

Here is a photo of him:


Judge Frank Murphy

He issued a fervent dissent. In his words, the exclusion of the Japanese falls into the abyss of racism and is no different from the treatment by dictatorial tyrannies of minority groups that the United States is committed to destroying. Simply put, the United States, to defeat dictatorial tyrannies, becomes one!

Murphy also compared the treatment of Japanese Americans with the treatment of German and Italian Americans to emphasize that race was the trigger for the exclusion order, not safety.

  • Fun fact: Murphy’s use of the term “racism” in the opinion quoted above and in his other settlements was one of the first to appear in a United States Supreme Court opinion.

Judge Owen Roberts

Like Justice Murphy’s dissent, Justice Roberts’ dissent acknowledges the inherent racism in the case. He doesn’t use the term “racism” but acknowledged that Korematsu was being punished because of his ancestry.

Judge Robert H. Jackson

Justice Robert Jackson wrote that while courts shouldn’t have to second-guess or interfere with military orders, they shouldn’t have to enforce orders if they’re unconstitutional. Additionally, he wrote that he would (if he could) overturn the judgment and discharge Korematsu. Here is its exact wording:

justice jackson

Jackson also warned that the Korematsu precedent would likely last after internment and the war.

His quote is as follows

civil liberties

Modern Dissenters

the exclusion-order-in-the-power-of-congress

Judge Antonin Scalia

Scalia said the “Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong,” on February 3, 2014, during a discussion with students at Manoa William S. Richardson School of Law.

In October 2015, he also told law students that he most admired Judge Jackson’s dissenting opinion: “It was nice to know that at least someone in the court realized that it was was wrong. It was at Santa Clara University.

Mentions in other court cases

  • Chief Justice Roberts in his dissent of Trump v. Hawaii

Chief Justice Roberts said Korematsu v. the United States had been erroneously decided and cited the dissent of Judge Robert Jackson. His exact words were “Korematsu was gravely wrong the day it was decided, was overruled by the court of history and – to be clear – ‘has no place in law under the Constitution’, and the forced relocation of American citizens to concentration camps, solely and explicitly on the basis of race, is objectively illegal and beyond the scope of presidential authority.

  • Judge Gorsuch in his dissent from the United States against Zubaydah

Gorsuch J., in his dissent in United States v. Zubaydah, reiterated that Korematsu was negligent. He criticized the court for using “the interest of the state” as a justification for “suppressing legal proceedings” and cited Korematsu as a reason not to (again).

Civil Liberties Act of 1988 Summary

This is a federal law (signed by President Ronald Reagan) that granted reparations to Japanese Americans who had been interned by the government during World War II. The law stated that the government’s acts of internment were based on racial prejudice rather than security reasons and thus reflected a failure of political leadership.

The specific stated purposes of the law are:


Since 1990, surviving internees have cost $20,000, or $39,000 in 2020 value. Two offices have been created to meet the provisions of the law: the Office of Appeals Administration and the Public Education Fund of civil liberties.


Now that you’ve read this article, you know that the answer to “What did the dissenting judges think about the power of military authorities?” is “that there should be limits to military action when martial law has not been declared”. And it was on the grounds that the decision in Korematsu v. United States was racially discriminatory.

Feel free to bookmark this to come back to while you study. And if your classmates are also looking for this study material, share it with them! They will surely appreciate it!