Supreme Court Justice Doubts Mass Internment Would Happen Again in US

Supreme Court Justice Stephen Breyer was interviewed on "This Week."

ByABC News
December 27, 2015, 11:12 AM

— -- In a rare sit-down interview with ABC News, U.S. Supreme Court Associate Justice Stephen Breyer said he doubts mass internment would happen again in the U.S. Even though the Supreme Court has never technically overturned its 1944 decision approving the Roosevelt Administration’s decision to isolate thousands of American citizens of Japanese descent during the Second World War, the country’s values have changed in the intervening 70 years, the justice explained, and courts are more likely now to step in to enforce them.

The internment was recently invoked by Republican presidential candidate Donald Trump to support his proposal for a temporary ban on Muslims entering the country.

Breyer refused to comment on Trump's proposed ban on Muslim immigration to the U.S., calling the issue “highly political.”

“I think every person in the United States has a right to an opinion on that, which he can express publicly,” a smiling Breyer told ABC’s Jonathan Karl, “except for me.” “And if I have an opinion,” he concluded, “I might talk to my wife about it, but I'm not going to talk to you.”

“I think everyone I've ever run into thinks that case was wrongly decided,” Breyer told Karl. But legal analysis is not what brings the justice to the conclusion that America would not repeat its mistakes of the past. In fact, the case approving Japanese internment has never been overturned because a similar situation has never arisen to be challenged. Breyer argues internment would not be repeated because “this country has developed stronger traditions of civil liberties.”

Breyer, a liberal-leaning Clinton nominee who joined the high court in 1994, will be 78 years old when the next president takes office. When asked whether he would delay a hypothetical decision to retire if Donald Trump or Sen. Ted Cruz (R-TX) won in 2016 so that they wouldn’t be able to choose his successor, Breyer acknowledged that “a lot of personal factors” play into the retirement decision. Pressed by Karl, Justice Breyer smiled again and responded, “I know you were asking a direct question. And I’m giving you an indirect response.”

Breyer also discussed his book, “The Court and The World,” which argues that American jurists, in interpreting American law, should take into account the solutions foreign courts have devised to similar problems. Defending his thesis against backlash from those who reject Breyer’s cross-border approach, the justice-turned-author points out that as globalization marches on, courts across the world face increasingly global questions – for example, in civil rights cases. In such cases, “security’s over here, limitation of civil liberties over there,” regardless of what legal system the court is using, Breyer argues. “We better know what's going on in the world if we're going to answer those questions properly,” he concluded.

Still, the justice had one important concession for those nervous about introducing vague notions of international values into strict American legal interpretation: “To know what's going on is not necessarily to accept the view of one foreign court, or not accept the view of one foreign court,” Breyer said. What is crucial for justice, Breyer contends, is “a more informed attitude.”