Argued Oct. 11, 12, 1944. Decided Dec. 18, 1944.

You think Supreme Court rulings are always correct? You think that there are not times when we need to throw these old horses out and get a new view? Perhaps a view that has something to do with the Constitution? Antonin Scalia, Clarence Thomas and Chief Justice William H. Rehnquist are the only three on the bench now who I think have ever even read the Constitution.

Korematsu related to the constitutionality of an exclusion order. Specifically, whether it was constitutional to exclude Mr. Korematsu from his home in California simply because he was Japanese American during WWII. As the Court framed the issue, it was constitutional to exclude Mr. Korematsu from his home. The Court denied that it was reaching the question of whether internment was constitutional. However, the bottom line was that the internment itself passed constitutional muster, since Mr. Korematsu was not allowed to be anywhere on Earth except within a Relocation Center. (See Clinton's intern apology.)

In upholding Korematsu's conviction, the Court relied heavily on the "military expediency" doctrine it had enunciated in a previous case (Hirabayashi), and noted that, "We are not unmindful of the hardships imposed by the exclusion order upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier."

Now, what about the dissenters? Justice Roberts stated that, "The indisputable facts exhibit a clear violation of constitutional rights. This is a case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States."

Justice Murphy, also in dissent, noted that the "exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism."

Justice Jackson noted that, by ratifying the exclusion order, "the Court has for all time validated the principle of racial discrimination in criminal procedure and of transplanting American citizens."

Roberts, Murphy and Jackson were only three of nine justices; their dissents did not have any force of law.

What got me interested in this case was the recent comment in Justice Antonin Scalia’s dissent on Stenberg v. Carhart (the partial-birth abortion case) where he compared this decision by the Court to Korematsu and Dred Scott. A very apt comparison, I’d say.