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.