Speaking to law students at the University of Hawaii today, Supreme Court Justice Antonin Scalia discussed the Korematsu v. United States ruling of 1944, which affirmed the right of the US government to force people into internment camps regardless of citizenship.
Scalia said it was wrong for the court to make that ruling, and said the case has since been repudiated. At the same time, he cautioned that people are “kidding themselves” if they think the same thing couldn’t happen again.
“In times of war, the laws fall silent,” Scalia said, adding that he would “not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.”
Technically speaking Korematsu v. United States was never overturned, but Korematsu’s conviction for evading internment was eventually overturned in 1983, and the Justice Department said the case was “in error” in 2011 and would not be used as the basis for future internment.
Scalia’s assessment of the potential for a repeat of the abuse of internment reflects similar comments from late Supreme Court Chief Justice William Rehnquist, who in 1998 said the question of presidential abuses in wartime was “largely academic” and that “there is no reason to think that future wartime presidents will act differently,” or that future Supreme Courts would be any more willing to stand up to them.
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