Telling Revelation

October 27, 2009 9:22 a.m.

Justice Scalia says that had he been on the Supreme Court in the 1950s, following his originalist philosophy he probably would have dissented from Brown v. Board of Education. [Late Update: Jack Balkin at Balkinization has reviewed the video of Scalia’s appearance and finds that the local newspaper misquoted Scalia, who actually said he would have joined Justice Harlan in dissenting in Plessy v. Ferguson, not in Brown.]

Quoting the local newspaper report

Using his “originalist” philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of “separate but equal” public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

“I will stipulate that it will,” Scalia said. But he said that doesn’t make it right. “Kings can do some stuff, some good stuff, that a democratic society could never do,” he continued.

“Hitler developed a wonderful automobile,” Scalia said. “What does that prove?”

The Hitler reference seems needlessly offensive, in the context. But this actually strikes me as either a tellingly revealing statement on Scalia’s part of bad values or a failure of imagination.

I’ve always thought that an originalist reading of the 14th Amendment actually gets you pretty much the result of the Brown decision. It’s Plessy (i.e., “separate but equal”) that is the judicial activist decision that pretty plainly departs from the intent and plain letter reading of the amendments in question. Brown’s reliance on social science-y arguments (though very was in significant measure an effort to operate within precedent — that is to day, within Plessy — to get you back to what the Civil War amendments actually pretty clearly mean.

So, if he’s an originalist, I don’t see why Scalia could not have signed on to Brown, just with a fundamentally different judicial reasoning.

Late Update: We’re getting the video to verify Balkin’s take on what Scalia actually said. But assuming that’s right, as you can see, Scalia and I seem to be on the same page, seeing Plessy as the problematic decisions — not only in moral-political terms, as most would now agree, but on constitutional interpretations grounds too.

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