Justice Antonin Scalia comes out and says Brown v. Board of Education was wrongly decided:
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?’”
Legal issues aside, what always strikes me about these majoritarian critiques of judicially-mandated desegregation is that people seem to forget that black people couldn’t vote in the south. This was not a small part of the civil rights controversy. There was no question of “democracy” here one way or another.
Update:
The text of the article has been revised to eliminate the Brown reference. An enigmatic editor’s note explains that the new version “removes an incorrect reference to Brown v. Board of Education in the initial version.” But what was incorrect about it? Did the reporter just invent Scalia saying it was wrongly decided? That would seem like an extremely difficult mistake to make.
At any rate, consider this retracted pending some further explanation of what happened. This was a public event so presumably other people heard it.
Update:
,Okay, further update. There’s a video recording of the event that Jack Balkin has watched and he concludes that “Scalia is clearly misquoted. He says that he stands with Justice Harlan, who dissented in Plessy v. Ferguson. He argues that the original meaning of the Fourteenth Amendment prohibits racial discrimination.”
For a bona fide example of a conservative who thinks Brown was an example of pernicious judicial activism we’ll have to stick with Max Boot of the Council on Foreign Relations.