When The Laws Were Silent


The attorneys general of Washington, Oregon, and California filed a brief in support of the government that pointed out that “for the first seven months little occurred to reduce the fear of attack. . . . On June 3, 1942, Dutch Harbor, Alaska, was attacked by carrier-based planes. On June 7, 1942, the Japanese invaded continental North America by occupying the Islands of Attu and Kiska in the Aleutian group. There was an increasing indication that the enemy had knowledge of our patrols and naval dispositions, for ships leaving west coast ports were being intercepted and attacked regularly by enemy submarines.” Following the oral argument and conference in the Hirabayashi case, Chief Justice Stone assigned the task of writing the Court’s opinion to himself. He first greatly narrowed the scope of the opinion by deciding that the Court need pass only on the validity of the curfew requirement and not on the requirement that Hirabayashi report to a relocation center. Hirabayashi had been convicted of both offenses, but his sentences were to run “concurrently”—that is, he would serve only three months in prison even though he had been sentenced to serve three months on each of two different charges. Under established law at that time, if the conviction on one count was upheld, the Court would disregard the conviction on the second count, since it essentially made no difference in the amount of time the defendant would spend in prison. In this case it meant that the Court had to tackle only the easier question of whether a curfew might be imposed, rather than the more difficult one of whether Hirabayashi could be sent to an internment camp.


Stone’s task in writing the opinion was not an easy one, because several of his colleagues insisted that there be little or no opportunity to challenge the order later, while Justices Douglas, Murphy, and Rutledge wanted explicitly to leave open that possibility. Indeed, Murphy circulated a draft of a caustic dissent that chastised the Court for approving a program that “utterly subverts” individual rights in war. Douglas circulated a concurrence in which he indicated his view that at some point a person interned under the program should have an opportunity to prove his loyalty. Murphy finally turned his draft dissent into a concurrence but said in it that he thought the program “goes to the very brink of constitutional power.” Rutledge also filed a brief concurrence.

Stone’s opinion for the Court borrowed a definition of the government’s war power from a statement made by Charles Evans Hughes—not while he was a member of the Court but in an article in the American Bar Association Journal : The war power of the national government is “the power to wage war successfully,” and it was “not for any court to sit in review of the wisdom of their [the Executive’s or Congress’s] actions, or to substitute its judgment for theirs.” If the Court could say there was a rational basis for the military decision, it would be sustained.

Stone’s opinion then adduced the facts—most of which had been set forth in the government’s brief —that showed the threat by the Japanese Navy to the Pacific Coast immediately after the Pearl Harbor bombing. It went on to say: “Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”

The Court, of course, had to respond to the charge that distinctions based on race alone were not permitted under the Constitution: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. . . . We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. . . . The fact alone that the attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan.” Stone’s opinion upholding the curfew was joined by five of his colleagues. Douglas, Murphy, and Rutledge, while voting to uphold the curfew, wrote separately.

Korematsu’s case did not come on for argument until October 1944. Here the Court was required to confront not merely the curfew but the far more draconian relocation requirement. The Court upheld relocation, in an opinion by Justice Black, basing its reasoning largely on the earlier decision. This time, however, there were separate dissents by Justices Roberts, Murphy, and Jackson.