Tuesday, November 10, 2009

Justice Scalia and Brown v. Board of Education

Regardless of your opinion of his jurisprudence (at Richmond & Fishburne, it's a fair bet he has both admirers and detractors!), it is hard to argue that Justice Antonin Scalia is one of the most consistently compelling figures in American law.

Scalia's opinions have a stylistic flair that distinguishes them, and he rarely shies away from controversy. Central Virginians also take an interest in Scalia's work in light of his personal connection to the area: he resided in Charlottesville for several years in the 1970's while a faculty member at the University of Virginia School of Law.


In yesterday's New York Times, Adam Liptak poses the question of how Justice Scalia would square his dogged constitutional originalism with the result in the landmark school desegregation ruling, Brown v. Board of Education. You can link to Liptak's piece here.

As Liptak points out, the weight of historical evidence demonstrates that the individuals who drafted and ratified the 14th Amendment -- the basis for the holding in Brown -- did not believe themselves to be ending school segregation and were, indeed, in favor of continued segregation. This makes originalists like Scalia uncomfortable, since they do not want to find themselves on the wrong side of a decision that is widely regarded as a legal -- and moral -- landmark in American history.

Liptak writes that, during a forum last month at the University of Arizona, Scalia was confronted with the question of how he would have voted in Brown. Uncharacteristically, Scalia ducked the question:

Justice Scalia did not give a direct answer to how he would have voted in Brown. “As for Brown v. Board of Education, I think I would have” — and then he changed directions.

He said he would have voted with the dissent in Plessy v. Ferguson, the case Brown overruled. But Plessy, decided in 1896, concerned the segregation of passengers on railroads. That is an easier case for originalists. For starters, railroads were long considered common carriers required to serve all customers equally.

Every good theory of constitutional interpretation should provide a framework for understanding, and defending, the decisions (like Brown) which are pillars of the American system of justice. From this writer's perspective, it sounds as though Justice Scalia is still struggling with how to explain and justify Brown using the originalist framework.