Why Scalia Is Right to Worry About Another SCOTUS Internment Ruling

The U.S. Supreme Court was designed to be an anti-democratic institution, one that would reject what’s politically popular and instead do what’s constitutionally right. In the words of James Madison, the judicial branch is supposed to act as an “impenetrable bulwark against every assumption of power in the legislative or executive.” Or at least that’s the theory. In practice, the Supreme Court has often done something else.

Credit: C-SpanCredit: C-SpanJustice Antonin Scalia admitted as much on Monday when he told a law school audience at the University of Hawaii that “you are kidding yourself if you think” the Court will not someday issue another decision comparable to Korematsu v. United States, the notorious 1944 ruling where the Supreme Court upheld President Franklin Roosevelt’s wartime internment of Japanese-Americans.

“In times of war, the laws fall silent,” Scalia said. "That's what was going on — the panic about the war and the invasion of the Pacific and whatnot. That's what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It's no justification, but it is the reality."

Unfortunately, he’s right. The history of the Supreme Court is replete with examples of the Court deferring to the very worst sort of government actions—and not just in time of war. Buck v. Bell, for example, a 1927 decision by Progressive hero Justice Oliver Wendell Holmes, allowed the state of Virginia to forcibly sterilize a teenage girl on the eugenicist grounds that she was “socially inadequate” and an “imbecile.”

As Scalia acknowledged, we’re kidding ourselves if we think today’s judges are any less susceptible to prejudice or panic, and would therefore be any less deferential to government power during trying times. It’s a sobering thought, but one that we are wise to bear in mind.

But there is one more lesson to be drawn from such history and it is this: The judiciary has been at its historic best when it refuses to accept the agendas of lawmakers and presidents. That was the case in 1917’s Buchanan v. Warley, when the Court struck down a popularly-enacted Jim Crow residential segregation law for violating property rights, just as it was the case in 1952’s Youngstown Sheet and Tube Co. v. Sawyer, where the Court invalidated President Harry Truman’s unilateral attempt to nationalize the steel industry during the Korean War.

The Supreme Court was designed to act as a check on the other branches of government. Our country is better off when it does its job.

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  • sarcasmic||

    Penaltax!

  • UnCivilServant||

    Huh, a tax on prisoners in penal institutions. I hadn't thought of that one, thanks. Can we also apply it to citizens in internment camps relocation centers re-educational facilities emergency centers?

  • Fist of Etiquette||

    The notion of internment camps today is ludicrous. Everyone is a protected class now. But if his point was that judges don't know or care shit about the constitutional limits on state action, then he's right.

  • Night Elf Mohawk||

    Wait until some brown people start blowing up a couple of malls a week and get back to me on whether internment camps are ludicrous.

  • Night Elf Mohawk||

    Or, rather, that the SCOTUS would stop the ludicrous from happening, just so we're clear.

  • WTF||

    Everyone is a protected class now.

    Except white, male, heterosexual, libertarians and conservatives. And it won't be camps, it'll be mental institutions/re-education centers.

  • sarcasmic||

    Don't forget gun owners who are not government employees.

  • Pro Libertate||

    Don't be absurd. They won't put libertarians in camps. They'll crucify us along I-95.

  • sarcasmic||

    It really is sad how so many people are openly hostile to the concept of liberty.

  • Auric Demonocles||

    Well at least I won't have to travel far...

  • Pro Libertate||

    We can pass messages up and down the Highway of Ex-Libertarians. For a while, anyway. I'd be disappointed if we didn't all join in a rousing chorus of "Always Look on the Bright Side of Life."

  • ||

    Well at least I won't have to travel far...

    Lucky me, i will get a ling road trip for my Crucifixion...

    or more likely a ride in a box car.

  • Vincent Milburn||

    And contraception-hating Catholics.

  • ||

    I'm not sure that's the point at all. I see it more that ultimately the process is managed by humans who react emotionally to crisis. Impartial reasoned reactions tend to go out the window in favor of the "Do Something" mentality that accompanies crisis.

  • wareagle||

    you mean like the Patriot Act?

  • ||

    Exactly.

  • ||

    Everyone is a protected class now.

    Rich people, Cable Companies, Christians...

    They don't seem very protected to me. or at least in the sense that you mean it.

  • sarcasmic||

    Tolerant people don't tolerate intolerance.

  • AlmightyJB||

    In related news, price of ammo seems to be getting back into the realm of affordable. I definately still kept my range time down last week when I went though.

  • The Late P Brooks||

    He did not impress me as being "worried".

  • DWC||

    Fuck SCOTUS and everything they are. We just need to have the right people appointed, right? Right minded people?

  • The Late P Brooks||

    They won't put libertarians in camps. They'll crucify us along I-95.

    "Him, over there. He's Spartacus. Can I go now?"

  • sarcasmic||

  • Auric Demonocles||

    Scalia should worry about the alt-text.

  • ||

    Call them jails instead of camps and bring in dogs to sniff for drugs WMD, and Scalia himself will rubberstamp it.

  • CE||

    Because FEMA already built the camps, and there are plenty of empty box cars sitting around?

  • mad libertarian guy||

    I didn't get that he was saying the court would approve another situation like the internment camps, but that the executive branch would someday call for something similar because of the fear involved in war. It seems that Root is reaching on this one in an attempt to demonize Scalia.

  • TheDom||

    Scalia seems oblivious to the fact that plenty of Italian-Americans in the US were rounded up and placed in camps, too. See www.segreta.org. There was also no mention of how the US Government abused the supposedly inoccuous census data in the early 40s to target Japanese, Italian and German Americans...sounds just like what happened to Arabs after 9-11. Hmmm...

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