“ I also indulge the hope that argument will produce a majority decision of the Court without further intervention from one who has been so identified with controversial phases of war crimes law that he cannot expect others to consider him as detached and dispassionate on the subject as he thinks himself to be. ”

“ They only involve decision of war crimes issues secondarily, for primarily the decision will establish or deny that this Court as power to review exercise of military power abroad and the President's conduct of external affairs of our Government. The answer will influence our Nation's reputation for continuity of policy for a long time to come. For these reasons I decided at Saturday's conference to break the tie in the Japanese cases. The horns between which I must choose in the dilemma are such, as I have pointed out, that it is a choice between evils. ”

“ The one group of Justices can hardly fail to proffer to the Japanese an opportunity to argue reviewability which they have consistently announced should be allowed to the Germans. Neither can the other side extend to the Japanese opportunities which they have consistently denied to the Germans. ”