U.S. Supreme Court

Scalia: Korematsu was wrong, but 'you are kidding yourself' if you think it won't happen again

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Justice Antonin Scalia told students in Hawaii on Monday that the Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.

Speaking at the University of Hawaii law school, Scalia responded to a question about the 1944 ruling, which upheld an executive order that required the detention of Japanese Americans during World War II, the Associated Press reports.

“Well, of course, Korematsu was wrong,” Scalia said. “And I think we have repudiated it in a later case. But you are kidding yourself if you think the same thing will not happen again.”

At the time, Scalia said, there was “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.”

Korematsu has never been explicitly overruled because there has not been a similar controversy before the court, the New York Times reported last week. The court could get a chance to do so, however, in a case involving the military detention without trial of people accused of aiding terrorism. A cert petition asking the court to overturn the federal law authorizing such detentions says the justices should consider overruling Korematsu.

A federal appeals court had dismissed the case, Hedges v. Obama, on standing grounds. Even if the Supreme Court denies review, it could add a statement renouncing Korematsu, according to lawyer Peter Irons, who helped the Korematsu name plaintiff overturn his conviction for violating a detention order. Irons has joined with other lawyers in asking the solicitor general to ask the court to overturn the 1944 decision.

SCOTUSblog also has coverage of Hedges v. Obama.

Prior coverage:

ABAJournal.com: “Acting SG Katyal Tells of Mistakes by a Predecessor in World War II Internment Case”

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