In the 1944 case Korematsu v. United States, the Supreme Court upheld a wartime order that led to mass internment of over 110,000 Japanese Americans during World War II. Fred Korematsu had refused to obey Executive Order 9066, which mandated evacuation from designated military areas and was subsequently arrested and convicted. He appealed his conviction on constitutional grounds arguing it violated his Fifth Amendment rights as it discriminated based on race and denied him due process of law. However, in a controversial decision split at 6-3 vote, the court ruled that while racial discrimination is generally unconstitutional under normal circumstances; in times of "emergency and peril" such as war time conditions - national security could override individual rights allowing for discriminatory actions if they were deemed necessary for public safety.

In the dissenting opinion for Korematsu v. United States, Justice Robert H. Jackson argued that the court's decision validated a disturbing precedent of racial discrimination under military necessity. He contended that while courts should defer to military judgment in times of war, they must also protect constitutional rights and prevent abuses of power by other branches of government. Jackson warned against allowing this case to establish a principle which would permit racial discrimination if justified by "military necessity." He expressed concern about potential future misuse or abuse of such a principle, arguing it could be used as an excuse for all kinds of discriminatory actions against various minority groups during wartime or emergency situations. Furthermore, he criticized the majority's reliance on political and military judgments rather than legal principles in reaching their decision.