It seemed too strange to be true—and, in the end, it was. A story posted to The Huffington Post yesterday announced rather shocking news: “Scalia on Brown v. Board of Education: I Would Have Dissented.” On the site’s homepage—where the story spent much of the day—the headline was even more provocative:
The story, it turns out, was aggregated from Taegan Goddard’s Political Wire—which was aggregated, in turn, from a piece posted to Arizona’s East Valley Tribune newspaper Web site Monday evening. The dispatch in question, provided by the Capitol News Service, detailed the appearance made by Scalia and fellow Supreme Court justice Stephen Breyer in Tucson on Monday, at a talk (subject: “Principles of Constitutional and Statutory Interpretation”) sponsored by the University of Arizona’s law school.
Per the story:
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?”
But, hmm. Constitutional originalism is one thing; using that approach to defend, even theoretically, the myriad injustices of ‘separate but equal’ is quite another. And even in a media landscape populated by Balloon Boys and Real-Life Pirates and Porcine Viruses and Sarah Palin…some things are still, yes, simply too bizarre to be true. And ‘Sitting Supreme Court Justice Offhandedly Advocating Segregation’ is, indeed, one of those things.
What Scalia actually said—albeit in a roundabout way—was that “I would’ve been with” “Justice Harlan” in a text-based interpretation of the equal protection clause. That would be John Marshall Harlan, who dissented in the case not of Brown, but of…Plessy v. Ferguson.
Yes. The Tribune story, essentially and unfortunately—by way of whitewashing the subtler point Scalia was making about the tense relationship between an originalist approach to the Constitution (which requires the deciphering, the Justice noted, of what such “generalized provisions” as equal protection meant at the time of the Constitution’s writing) and a so-called “evolutionary” approach—confused two landmark Court cases: Brown, whose decision is the subject today of near universal acclaim…and Plessy, that of segregational infamy, whose decision is—and properly so—the subject today of near universal disgust. Of course Scalia would dissent from Plessy. One assumes that all the current Justices, regardless of their particular jurisprudencial proclivities, would do the same.
Which means, then: nothing to see here, folks. Scalia was not, in fact, advocating segregation yesterday. No incendiary affronts to common decency were afoot. (Unless, that is, one counts sloppy reporting.)
What’s notable about the Scalia narrative, though, is not merely the egregiousness of the words put in the mouth of the Justice. More interesting is the context in which the error grew—and the manner in which the erroneous story went viral. The story was picked up not only by the HuffPo and Political Wire, but also by TPM and New York magazine and the law blog Balkinization. It went from zero to zeitgeist in less than a day.