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-Span

Justice 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.