U.S. Supreme Court

The Brown v. Board of Education Question: What Would Scalia Do?

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Justice Antonin Scalia said in a 2005 New Yorker profile that he would have voted with the majority in the Brown v. Board of Education decision ending segregation, but he didn’t go quite that far in a recent debate.

Brown v. Board of Education can be hard to square with originalism, which holds that the Constitution should be interpreted based on the original understanding of the text, the New York Times reports. The subject came up in a debate at the University of Arizona last month between Scalia and Justice Stephen G. Breyer, who advocates a more flexible method of constitutional interpretation.

“The justices know how to get under each other’s skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm,” the story says.

When Breyer asked about Brown v. Board of Education and the 14th Amendment, Scalia sidestepped the question. “As for Brown v. Board of Education, I think I would have”—and then he changed directions, saying he would have voted with the dissent in Plessy v. Ferguson, a case overruled by Brown.

But Plessy was an easier case for originalists, according to the Times. It concerns segregation on the railroads. They have long been considered common carriers that are required to serve all customers equally.

The Huffington Post posted the video.

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