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Misquoting Scalia

By Philip Klein on 10.27.09 @ 4:42PM

Earlier, an Arizona newspaper, the East Valley Tribune, attributed remarks to Justice Scalia that were quite stunning:

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?''

Scalia for racial segregation? Now that would be some bombshell! Talking Points Memo's Josh Marshall initially seized on the remarks with a post headlined, "Telling Revelation."

But as Jack Balkin at Balkinization noted after viewing the video, Scalia actually said he would have dissented in Plessy v. Ferguson, you know, the case that imposed racial segregation.

Marshall, to his credit, updated his post, but the East Valley Tribune merely deleted the erroneous paragraph from its website, without offering an offical correction. Shame on them.

UPDATE: I thought my post was pretty clear, but evidently some commenters still concluded that Scalia said that he would have dissented in Brown. So let me just repeat it again as clearly as I can: Scalia didn't say that he would dissented in Brown. The newspaper account was wrong and the incorrect paragraph has been removed from the newspaper's website.

UPDATE II: The East Valley Tribune has added the following editor's note: This is an updated version of a story that was originally posted Oct. 26. It removes an incorrect reference to Brown v. Board of Education in the initial version.

View all comments (36) | Leave a comment

Tim| 10.27.09 @ 4:58PM

In six months it will be reported again, only attributed to Rush Limbaugh. It's how they work.

Al in SoCal| 10.27.09 @ 5:15PM

So - because he would have declined to support imposing segregation that makes his statements regarding brown v. board any LESS outrageous? The goal of the GOP is to try to hide your hate through legalese instead of coming right out and saying it like it is - you would prefer and still to this day prefer segregation because you think it's your right to discriminate - period. Right?

Stephanie| 10.27.09 @ 5:24PM

Al in SoCal,
You are a mindless tool of the Communist left, a.k.a the Democrat party. You need to do your research. It was the DEMOCRAT party who opposed the Civil Rights Act of 1964. The only reason it passed was due to REPUBLICAN support. Robert Byrd, a DEMOCRAT, was a member of the Ku Klux Klan. DEMOCRATS opposed an end to slavery during Lincoln's presidency. It's also not the Republicans that have kept the black voting bloc in their back pocket by enslaving them for years by keeping them on the government plantation. It is the DEMOCRAT party who is opposed to freedom, NOT the Republican party. Wise up, fool!

Al in SoCal| 10.27.09 @ 5:47PM

Wow Stephanie - you can do a search on "the google" too? Neat!

What party do you think Lincoln would associate with here and now? It doesn't start with an R. Also - your buddy Strom - do you remember him or Jesse Helms? Gosh - I wonder what they belonged to .... and were praised for it over and over again as part of the 'grand old party'.

RogerCfromSD| 10.27.09 @ 7:03PM

Al, your straw man reasoning doesn't alter how wrong you are. Democrats are responsible for the continued impoverishment of the minorities in this nation. Instead of enabling them, Democrats mentally disable them.

Liberals are the true racists in America. That sad fact must be difficult for folks like yourself to accept. As it should be.

Al in SoCal| 10.27.09 @ 8:07PM

Yawn - if you mean providing funds so people don't STARVE - then yes we're "mentally disabling them". I know people getting a couple of hundred bucks a month aggravates Republicans as they think that is some kind of high life - but truly it's not.

Helping in GOP terms means stepping over them on their way to the bank - right?

Nick| 10.27.09 @ 10:59PM

A couple hundred bucks a month? Ha!

What, are you stuck in 1983?

Philip Klein| 10.27.09 @ 5:28PM

Al in SoCal, you obviously didn't read carefully. The whole point of my post was that SCALIA NEVER SAID HE WOULD HAVE DISSENTED IN BROWN! He was misquoted!

Al in SoCal| 10.27.09 @ 5:42PM

Answer the question though - yes - I understand he was misquoted though I think he would have dissented anyway. Why? Even though it was the Democrats who held down civil rights during the early 60's it was the Republicans who picked it up just as the Dems woke up and rejected the Dixiecrats. Shocking what history teaches. Republicans were frothing at the mouth to get ahold of the south - and the way was clear.

The question posed was: Do you think it's YOUR right to discriminate if you want if it's a private business?

I already know the answer to the question - so no need to attack this poster instead of actually answering the question.

malclave| 10.27.09 @ 7:37PM

" so no need to attack this poster instead of actually answering the question"

ROFLMAO

Isn't that a bit hypocritical of you, since all you do yourself is attack, rather than provide intelligent argument?

Al in Socal| 10.27.09 @ 8:03PM

Question goes unanswered - because Republicans as usual are too afraid to post their REAL beliefs.

The question posed was: Do you think it's YOUR right to discriminate if you want if it's a private business?

Ken (Old Texican)| 10.27.09 @ 5:51PM

YES, AL in SoCal
It is MY RIGHT TO DESCRIMINATE!

My right includes protecting my family against drug addicts looking for a fix and in a murderous frame of mind to get the drug fix.

My right includes the right to be a brother to sisters and brothers who happen to be black, and who are Christians, and/or ethical fellow citizens.

My right includes the right to descriminate against truly bad wines. (heh)

You don't like it? Screw you! (smile)

Al in SoCal| 10.27.09 @ 5:55PM

I'm not talking about denying service to someone. I'm talking about systemic denial of services to a class of people.

The question again - since I know it's tough to get a straight answer is: Do you have a right to discriminate in your own private business such as a store in hiring, etc??

Big Leo| 10.27.09 @ 7:00PM

You are truly an idiot. He didn't make any comments about Brown vs. Board of Education. None. Zero. Zilch. He said he objected to Plessy vs. Ferguson, which ESTABLISHED segregation as legal. Read for comprehension, not what you think is there.

ArizonaRon| 10.28.09 @ 12:44PM

Al, you're a complete idiot. There's really no more that needs to be said about your obvious bogotry towards anyone you disagree with.

Liberal Reader| 10.27.09 @ 5:17PM

Mr Klein is of course right. Justice Scalia did say he would have voted against Plessy -- possibly one of the worst decisions in the history of the Supreme Court.

And I think liberals should listen more carefully to Justice Scalia's philosophy: he clearly supports the democratic process and (often) distrusts an activist judiciary.

However, on the Brown case he'd be wrong.

Plessy, let's remember, did NOT "impose segregation," as Mr Klein claims.

Rather, it legitimized it; it proclaimed segregation constitutionally acceptable.

What imposed segregation was a white supremacist culture whose laws, morals, beliefs, customs, and educational practices were all strongly bent on making blacks second class citizens.

The segregationist regime was immensely powerful and dauntingly difficult to uproot. To end it required action at nearly every level of society; it required action on the parts of all three branches of government, action in the press, action by grassroots organizations, action in the schools and in churches, white and black. It was a huge, revolutionary change, and Brown v. the Board of Education was an important part of it.

So -- while I differ from most liberals in believing that Justice Scalia has an important and strong judicial philosophy -- I think he'd have been wrong to dissent and Brown, and I'm glad he wasn't there to do it.

Big Jim| 10.27.09 @ 5:46PM

Lib Reader, Scalia did not say he would have dissented in Brown. That was the point of the post.

Liberal Reader| 10.27.09 @ 6:32PM

Big Jim,

No, it WAS NOT the point of the post. Reread it.

Scalia said that he WOULD have dissented in Brown. Mr Klein's point, as far as I can tell, is that since he would have dissented in Plessy, he would have obviated the need for Brown in the first place.

The point is a good one, as far as it goes, but it neglects to account for the fact that segregation was NOT simply the result of a bad Supreme Court decision. It was a deeply ingrained way of life that required enormous institutional changes to uproot.

Philip Klein| 10.27.09 @ 6:44PM

No, Liberal Reader, Scalia never said that he would have dissented in Brown. The newspaper account was wrong. That's why my post is titled, "Misquoting Scalia" and why I wrote that the newspaper "deleted the erroneous paragraph from its website."

maverick muse| 10.28.09 @ 8:34AM

liberal reader: "the fact that segregation was NOT simply the result of a bad Supreme Court decision. It was a deeply ingrained way of life that required enormous institutional changes to uproot. "

I was following your thought until your "factual requirement" stipulating institutional bureaucratic empowerment that of itself becomes a misappropriate abuser of unalienable and Constitutional rights.

The Constitution already existed, providing the rights and protections. Any institutional "help" to cure a "problem" (legislated or ordered via the Executive privilege or even judgment) should have a temporary rather than permanent life. An expiration date would not enable the obscene growth of bureaucracies that are ruining America.

Segregation was a deeply ingrained process around the globe, regardless of culture or society, that was already evolving into extinction via free thought. Concluding that enormous institutional changes were required in order to overcome a fault is typical of the non-tolerant mentality that parades as the modern pirate usurping the term "Liberal".

Institutions of coercion are doomed to deprive humanity of the very promises they feign as ideals. The further enhancement of power they are granted or that they abscond, the worse for humanity and the unalienable right of liberty.

Bureaucracies do not care for the individuals or for people, but for themselves and their own preservation. That is truth. It seems to be a major point regarding the fall of Rome, as well as republics and democracies since.

Liberal Reader| 10.27.09 @ 6:53PM

CORRECTION: I watched the video again. Scalia -- in my opinion -- IMPLIES strongly that he doesn' t like the way Brown was decided, but that IS because he thinks Plessy was poorly decided.

I said above that he said outright that he would have dissented in Brown, which is clearly incorrect.

As I indicated above, I'm actually a big fan of Justice Scalia and was not trying to smear him in any way.

So, Big J, you're right, pretty much.

Michael Dooley| 10.28.09 @ 6:54AM

Look folks. Scalia's comments reflect a common notion among Conservative legalists. Brown was rightly decided but wrongly argued. There was plenty of grounds to render a positive decision for equal rights under the Constitution. The Court, however, relied on sociological analysis to arrive at its ruling. "Originalists" believe decisions should be built on the Constitution and the law--not on other disciplines (anyone who actually works in the social sciences can tell you that findings and understandings within the respective disciplines are constantly shifting). To keep faith with a self-governing people, law should be guiding by the law and ultimately the Founding Document.

Red Phillips| 10.28.09 @ 8:45AM

"There was plenty of grounds to render a positive decision for equal rights under the Constitution."

Name it. I'm sure you are not going to cite the 14th Amendment because, as the Southern Senators pointed out in their rebuke, the same Congress that passed the 14th Amendment segregated the DC school system. The reason Brown languished in the court for over a year is because there was no constitutional grounds on which to base it. Marshall's brief was a joke. Paul Craig Roberts does a great job of explaining the history of the case. There is nothing in the Constitution that prohibits the segregation of schools at the local or state level. You are either an originalist or you are not. You can't be an originalist only when it suits you.

eaglewingz08| 10.27.09 @ 6:59PM

It was DEMOCRATS who were in FAVOR of DISCRIMINATION based ON RACE! But DEMOCRAT teachers and BOOK writers glide over that just as their minions in the press glide over inconvenient facts about DEMOCRAT politicians in corruption stories. The DEMOCRATS have a KKK member (former) in the SENATE, none exists on the Republican side.
As for who is for excluding a whole class of people, DEMOCRATS have deprived and sentenced to death A WHOLE CLASS OF PEOPLE. Everyday those persons get lynched across the country and 1.1 million are murdered. They are the victims of abortions and they are babies ripped out of their mothers wombs. Same democrats doing their dirty deeds on a much grander scale.

Big Leo| 10.27.09 @ 7:03PM

The East Valley Tribune's major circulation is street sales by the homeless. At stop lights, you give the homeless dude a dollar and he gives you an East Valley Tribune. Then you throw it away. What a great source!

AzDude| 10.28.09 @ 5:41PM

Big Leo is grossly incorrect about how the East Valley Tribune is distributed. There are 100,000 papers distributed in the area, most of which are home delivered for free in targeted neighborhoods. About 20 percent of the papers are distributed free in racks throughought the cities. And, as noted in the update of this post, a correction to the Scalia story was noted on the paper's web site.

David H| 10.27.09 @ 8:40PM

Big Al...President Lincoln would certainly associate with the party that supports individual rights and freedom, the GOP. Of course, Lincoln also supported sending the freed slaves back to Africa because he believed that blacks were inherently inferior to whites. Sort of like liberals today, who believe that blacks can't succeed on their own. So who knows which party Ol' Abe would side with today.

I don't own a business, but if I did, I believe that I should be able to hire and fire whoever I want, and the only color that I would care about when it comes to potential customers is GREEN.

Al in SoCal| 10.28.09 @ 5:07PM

David was the ONLY one who actually answered my question. Sure - I would venture to say most Republicans / Libertarians would say that it is well within their right to hire (not hire) anyone for any reason - even if it was for their color, etc. This is actually WHY Democrats feel the need to give minorities breaks - it's because of the inherent racism built into the system. Gasp - yes - there is STILL racism.

While you may try to quibble over semantics there are quite a few on the right who would proudly reject the brown v board decision and NOT for legal reasons.

Red Phillips| 10.27.09 @ 8:56PM

Philips, is this a conservative website? I sure hope Scalia would have dissented in Brown vs. Board. Brown was wrongly constitutionally decided. This should be an undisputed issue for anyone who considers themselves an originalist. Brown had nothing to do with enforcing the Constitution. It was a piece of sociology. Paul Craig Roberts has done a devastating critique of Brown. It is must reading for anyone who defends the constitutionality of the Brown decision. If Scalia is truly an originalist, he must oppose Brown. If he doesn't he isn't a full fledged originalist. This is virtually definitional.

Red Phillips| 10.27.09 @ 8:58PM

Oops ... Philips (habit) should be Philip.

David H| 10.27.09 @ 9:18PM

Wait - you mean using black dolls and white dolls to find out about children's self-esteem isn't in the U.S. Constitution? It must be in the Preamble somewheres...

Red Phillips| 10.27.09 @ 10:06PM

Actually David, I think it is hiding in the penumbra somewhere.

Red Phillips| 10.27.09 @ 9:55PM

Here are two short Paul Craig Roberts essays on the subject. These are not the longer article I referred to above. I think it was a chapter from his book The Tyranny of Good Intentions, but I can't find it online anymore. These article make the point clearly enough however.

http://www.lewrockwell.com/roberts/roberts46.html

http://www.lewrockwell.com/roberts/roberts49.html