In an interview with ABC News, Justice Breyer explained that Korematsu could not happen again. Here is my rough transcript of the interview:
Breyer: Cicero said 2,000 years ago, in time of war, the laws fall silent. That was the Court’s attitude for a long time. That led in World War II, 70,000 American citizens of Japanese origins from being removed from their homes and put in camps. This court in 1944 upholding that without any evidence whatsoever. They upheld it thinking, ‘we can’t run the war, Roosevelt has to.’
Karl: Could it happen again?
Breyer: That they put 70,000 Americans again. I doubt it. This country has developed a stronger tradition of civil liberties.
In a speech at the Unviersity of Hawaii in February 2014, Justice Scalia said just the opposite:
“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime Q-and-A session.
Scalia cited a Latin expression meaning, “In times of war, the laws fall silent.”
“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,” he said.
Avi Soifer, the law school’s dean, said he believed Scalia was suggesting people always have to be vigilant and that the law alone can’t be trusted to provide protection.
In another account of Scalia’s speech, the Justice explicates this point further–the point of Separation of Powers is to protect individual liberty.
“The function of the court is not to keep the other two branches (legislative and executive) in line; that’s not what we’re for. We’re there to stop harm to individuals,” Scalia said.
It’s remarkable that both Justices cited the latin maxim, with very different conclusions. Breyer’s optimism that we have moved past Cicero’s understanding clashes with Scalia’s pessimism that what was true 2,000 years ago is still true 70 years after Korematsu.