Justice Scalia’s favorite opinion was the dissent in Korematsu by Justice Robert Jackson. Justice Jackson wrote regarding Korematsu:
[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens . . . The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.
Justice Antonin Scalia acknowledged that Korematsu was wrongly decided, and yet he also believed that the Korematsu decision could realistically be upheld in the future. He noted that, “In times of war, the laws fall silent.” It was an acknowledgement that the law is an ideal which bends at the behest of reality.
Justice Scalia also believed that the phrase “Such-and-such case and its progeny” was once a wonderfully vivid description which had become overused and cliché. However, consistent with the Japanese culture of adoption, Korematsu may have adopted a logical progeny in Trump v. Hawaii.
The Supreme Court wrote that, “[The law] exudes deference to the President in every clause.” The Court asserted, “Any rule of constitutional law that would inhibit the flexibility […] of the President to respond to changing world conditions should be adopted only with the greatest caution…and our inquiry into matters of entry and national security is highly constrained.” [emphasis added] The conventional review would only look to see if any proposed law was facially legitimate and bona fide, and yet the Court also considered whether the policy was plausibly related to the Government’s stated objective to protect the country. It noted that a law would only be struck down if the laws at issue “lack any other purpose other than a bare desire to harm a politically unpopular group.”
In contrast to the Masterpiece Cakeshop decision, the Court declined to truly search for any animus and truthfully only looked at the face of the executive order. Going further, Justice Kennedy wrote in his concurrence, “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” Yet, the full context of his concurrence echoes the dissent of Justice Jackson:
If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history
Hence, Justices are ostensibly willing to look beneath the bare face of an order, but are unwilling to see what was truly lurking beneath.
Here, the Court disclaimed the holding of Korematsu while simultaneously adopting the deferential reasoning which underpinned Korematsu. The majority wrote:
Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and –to be clear- has no place in law under the Constitution.
Yet Justice Scalia would have astutely held that conservative judicial philosophy requires holding that Korematsu is not before the Court and therefore the Korematsu disclaimer is of no import. The actual holding would have been the same rationale which Korematsu was based on – The eyes of the law may be blindfolded by the cloth of national security. Any cloth is acceptable, including whole cloth.
This is an example of many eyes looking, but few eyes truly seeing. Rot can begin on the inside and crumble even the strongest of foundations while concealed from sight by the thin veneer of political due process.
Perhaps there is no longer any place in this country for substantive due process. Yet, for the Lady of Justice to truly measure a society on the scales of principle, she must first be willing to take off her blindfold and see with caring eyes. If she is unwilling to take off her blindfold then she will rule by the sword and not by the scale.
Only take heed to thyself, and keep thy soul diligently, lest thou forget the things which thine eyes have seen.
-Deuteronomy 4:9 (Ironic)
Our eyes have never seen it. We are unwilling to believe it until we see it. And by then, our eyes will deceive us.