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.

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.
, for example, a 1927 decision by Progressive
Justice Oliver Wendell Holmes, allowed the state of
Virginia to forcible 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

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