The decision has been widely criticized,[1] with some scholars describing it as "an odious and discredited artifact of popular bigotry",[2] and as "a stain on American jurisprudence".

[7][8] In the aftermath of Imperial Japan's attack on Pearl Harbor, President Franklin D. Roosevelt had issued Executive Order 9066 on February 19, 1942, authorizing the U.S. War Department to create military areas from which any or all Americans might be excluded.

However, a 23-year-old Japanese-American man, Fred Korematsu, refused to leave the exclusion zone and instead challenged the order on the grounds that it violated the Fifth Amendment.

Dissenting justices Frank Murphy, Robert H. Jackson, and Owen J. Roberts all criticized the exclusion as racially discriminatory; Murphy wrote that the exclusion of Japanese "falls into the ugly abyss of racism" and resembled "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy."

Korematsu's conviction was voided by a California district court in 1983 on the grounds that Solicitor General Charles H. Fahy had suppressed a report from the Office of Naval Intelligence which stated there was no evidence that Japanese Americans were acting as spies for Japan.

In the meantime, Secretary of War Henry L. Stimson mailed to Senator Robert Rice Reynolds and House Speaker Sam Rayburn draft legislation authorizing the enforcement of Executive Order 9066.

Justice Black further denied that the case had anything to do with racial prejudice:Korematsu was not excluded from the Military Area because of hostility to him or his race.

Justice Frank Murphy issued a vehement dissent, saying that the exclusion of Japanese "falls into the ugly abyss of racism", and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.

"[14] Murphy argued that collective punishment for Japanese Americans was an unconstitutional response to any disloyalty that might have been found in a minority of their cohort.

[14]By contrast, Justice Robert Jackson's dissent argued that "defense measures will not, and often should not, be held within the limits that bind civil authority in peace", and that it would perhaps be unreasonable to hold the military, who issued the exclusion order, to the same standards of constitutionality that apply to the rest of the government.

Jackson writes, "I do not think [the civil courts] may be asked to execute a military expedient that has no place in law under the Constitution.

The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

[14] Jackson further warned:Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty.

But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.

Specifically, he said Solicitor General Charles H. Fahy had kept from the Court a wartime finding by the Office of Naval Intelligence, the Ringle Report, that concluded very few Japanese represented a risk and that almost all of those who did were already in custody when the Executive Order was enacted.

[21] While not admitting error, the government submitted a counter-motion asking the court to vacate the conviction without a finding of fact on its merits.

Judge Marilyn Hall Patel denied the government's petition, and concluded that the Supreme Court had indeed been given a selective record, representing a compelling circumstance sufficient to overturn the original conviction.

She granted the writ, thereby voiding Korematsu's conviction, while pointing out that since this decision was based on prosecutorial misconduct and not an error of law, any legal precedent established by the case remained in force.

[21] He faulted Fahy for having "suppressed critical evidence" in the Hirabayashi and Korematsu cases before the Supreme Court during World War II, specifically the Ringle Report's conclusion that there was no indication Japanese Americans were acting as spies or sending signals to enemy submarines.

Katyal noted that Justice Department attorneys had actually alerted Fahy that failing to disclose the Ringle Report's existence in the briefs or argument in the Supreme Court "might approximate the suppression of evidence".

Thus, Katyal concluded that Fahy "did not inform the Court that a key set of allegations used to justify the internment" had been doubted, if not fully discredited, within the government's own agencies.

[24] Eleven lawyers who had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in successful efforts in lower federal courts to nullify their convictions for violating military curfew and exclusion orders sent a letter dated January 13, 2014,[25] to Solicitor General Donald Verrilli Jr.

[33][34][35] Constitutional lawyer Bruce Fein argued that the Civil Liberties Act of 1988 granting reparations to the Japanese Americans who were interned amounts to Korematsu having been overturned by history[2]—outside of a potential formal Supreme Court overrule.

"[37] Justice Anthony Kennedy applied this approach in Lawrence v. Texas to overturn Bowers v. Hardwick and thereby strike down anti-sodomy laws in 14 states.

'Roberts also added: "The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.

Gorsuch criticised the court for allowing "state interest" as a justification for "suppressing judicial proceedings in the name of national security."

The report, however, contained information executive officials knew to be false at the time....And still more years passed before this Court formally repudiated its decision.