Scalia predicts Kelo will fall, but Korematsu would stand

At the new Washington Post home of the Volokh Conspiracy, Ilya Somin has coverage of a recent speech given by Supreme Court Justice Antonin Scalia. In it, Scalia talks about two of the more controversial SCOTUS decisions of the last century. One is the nearly universally panned 5-4 ruling in Kelo v. City of New London from 2005 and the other is the 1944 (wartime) decision in Korematsu v. United States regarding the internment of the Japanese.

In the speech, Scalia once again aired his feeling that Kelo would eventually be overturned.

On Kelo, Scalia reiterated his 2011 prediction that the decision will eventually be overruled, stating that it “will not survive.” Kelo was a closely divided 5-4 decision (Scalia voted with the dissenters) that generated an unprecedented political backlash across the political spectrum, and has also been repudiated by every state supreme court which has considered the question of whether to adopt it as a guide to the interpretation of their state constitutions’ public use clauses. In 2011, Justice John Paul Stevens, the author of the Kelo majority opinion, conceded that he made a significant, “embarrassing to admit” error in his analysis of precedent (though he continues to defend the result on other grounds).

I don’t recall speaking to a single person in 2005 with any extensive legal background who thought the decision in Kelo was a good idea or that it was faithful to the constitution. The decision essentially rewrote the takings clause of the 5th amendment, changing the phrase “public use” to the vastly more vague, “public benefit.” And in the end, the specific case being examined in Kelo turned into a monument to its own stupidity, as the land taken at the heart of the case stood empty and abandoned only nine years later.

The Korematsu case raises considerably more hackles among at least some conservatives, as Somin notes in the article, but Scalia was fairly unequivocal on that one. It was a mistake… but one which will likely be upheld in the future.

“But you are kidding yourself if you think the same thing will not happen again,” he said.

He used a Latin expression to explain why. “Inter arma enim silent leges … 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,” Scalia said. “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.”

It’s an interesting perspective, not to mention providing us all with another great Latin phrase. But it’s also historically accurate. In times of great duress and threat to the nation, we will tend to look the other way in support of national security and survival of the country. And Scalia is likely correct on his second point… when the barbarians are at the gate again, we’ll probably choose whatever looks like the most expedient course of action to ensure our survival. And that applies to the courts as well.