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.

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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.