Scalia was responding to a question about the court's 1944 decision in Korematsu v. United States, which upheld the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.What's more notable than that it could happen again is to have such a clear statement that "of course, Korematsu was wrong." The law school dean, Avi Soifer, made that observation at the time.
"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 question-and-answer 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.
Soifer then pushed toward a recognition that the courts should maintain their supervision of the political processes even in wartime. Scalia's remarks, as reported, don't go so far as to say that he as a judge would be able or willing to do anything about the rights violation that is, now, after the war, so clear. In fact, Scalia seems to be conceding that if it we ever were, once again, in a situation where the President did see fit to do something that drastic, the courts would not help.