upholding the government's policy. Seeking to win, or hold on to, Justice Wiley Rutledge's vote, Stone said to him, "If you can do it for curfew you can do it for exclusion."44 Although Stone did not say so, "it" could only have referred to making what Stimson had called a tremendous hole in our constitutional system--or, given the review functions of the Court, making believe the hole was not there. This time Murphy did dissent, and he was joined by Owen Roberts and Robert Jackson. Murphy explained that the exclusion order fell into "the ugly abyss of racism." His opinion contained pointed references to "obvious racial discrimination," an "erroneous assumption of racial guilt," a "legalization of racism," and "racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation." In view of these bold assertions, Hugo Black's majority opinion, which lamely asserted that " Korematsu was not excluded from the Military Area because of hostility to him or his race" had about it an air of unreality. 45
This evaluation of how World War II affected the Bill of Rights is consistent with an ongoing historiographical reconsideration of the concept of a "good war." 46 To be sure, the war did not produce the inroads on freedom of speech that many had expected and did not lead either to widespread hysteria or to mob violence. Moreover, the Supreme Court protected the First Amendment rights of religious dissenters, naturalized citizens, and political extremists and often did so in language that ringingly affirmed fundamental liberties.
But there was another side to the war, equally important if not as widely recognized at the time: a president anxious to restrict newspapers that were critical of his policies; liberals who justified those restrictions and who either failed to maintain a critical perspective on policy makers or sought to bolster a reputation for toughness; the use of subtle, informal pressures to silence critics; and a virulent racism, so contagious that it spread even to the chambers of the Supreme Court. As Alexis de Tocqueville noted long before in Democracy in America, if a protracted war "does not lead to despotism by sudden violence, it prepares men for it more gently by their habits." 47