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).
It is difficult to say whether Scalia’s prediction about Kelo will turn out to be correct. In the short run, a complete reversal is unlikely, because none of the five majority justices in Kelo has since been replaced by a successor likely to vote the other way in a similar future case. But history does show that closely divided, unpopular decisions are more likely to be overruled than lopsided and relatively uncontroversial ones. Justice Stevens’ admission might potentially further undermine Kelo’s reputation, thereby increasing the odds of a reversal.
On Korematsu, Scalia unequivocally stated that the ruling was “wrong,” thereby differing with the small but noteworthy group of conservatives who have defended the decision in recent years, such as Judge Richard Posner and columnist Michelle Malkin. But he also predicted that a similar internment might 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.”
There is some validity to this pessimistic prediction. Courts have often let the government get away with unconstitutional actions in time of war. On the other hand, the Court has been more assertive in wartime in recent years, striking down several Bush administration policies during the War on Terror. If an unconstitutional internment enjoys overwhelming support from political elites and the general public, as happened during World War II, the Court may well not act. But it is more likely to do so in a case where public and elite opinion are at least substantially divided, as happened during the Bush Administration or the Korean War, when the Court curbed the Truman administration in the famous Youngstown case. In my view, the errors of Korematsu are less likely to be repeated if the Court clearly repudiates that ruling. There are also other good reasons to explicitly overrule the Japanese internment cases.