Tuesday, October 27, 2009

Scalia Would Have Dissented in Brown v. Board

You have to hand it to Antonin Scalia -- he clearly isn't trying to put a good face on originalism.
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.
This isn't entirely surprising. After all, Justice Scalia was part of a majority that went as far as it could to undermine the integrationist intent of Brown. Still, inasmuch as control over the judiciary is a political battle -- over the next three or seven years, President Barack Obama will have ample opportunity to shape the federal judiciary -- aligning originalism with a position that is wholly at odds with both history and the American public is not necessarily the wisest course of action for a Justice who has expended so much effort to sway the judiciary towards his point of view over his career on the bench.

Updated at 11:35 PM Pacific: Per Jack Balkin, Justice Scalia didn't actually say what the newspaper said he said. Here's the video.

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Anonymous Anonymous said...

Obama will have a difficult time shaping the federal judiciary if this nonsense continues: http://www.slate.com/id/2233309/

10/27/2009 11:24 AM  
Blogger Patrick said...

Props for misquoting Scalia on an extreme position. That's difficult to do.

10/27/2009 11:48 AM  
Blogger Jonathan Singer said...

This is why it's probably better to have reporters with legal backgrounds cover such things.

10/27/2009 11:56 AM  
Anonymous Anonymous said...

. . . or why, before publicly hanging a man with his own words, we owe him the effort of first hearing or reading what he actually said?

10/27/2009 1:33 PM  
Anonymous Anonymous said...

For the record (anonymously), you can totally believe in integrated schools and also think that Brown v. Board was incorrect. I probably would have dissented, even if Scalia would not. The logic in the opinion is lacking. There were plenty of other constitutional grounds to use with which to end segregation.

10/28/2009 9:10 AM  
Anonymous Anonymous said...


That would be a concurrence rather than a dissent, I presume.

what was odd about balkin's post on Scalia is that these days there has been far more criticism of Brown from the left than from the right.

10/28/2009 1:25 PM  

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