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Bench Memos

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Brown, Plessy, Whatever



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Given Justice Scalia’s longstanding position (set forth, among other places, in this New Yorker interview) that the Court in Brown v. Board of Education reached the right result, I was surprised to see this summary of a newspaper article contending that Scalia recently stated that he would have dissented in Brown.  Well, apparently he actually stated that he would have joined Justice Harlan’s dissent in Plessy v. Ferguson—in other words, the exact opposite of the position that the newspaper imputed to him.  (I haven’t reviewed the video myself, but that’s what someone who has done so tells me, and that’s also what Yale law professor Jack Balkin—no admirer of Scalia’s jurisprudence—says.)  

My own sketch of the originalist case for the result (not the reasoning) in Brown is here.

[Cross-posted on The Corner]


Tags: Whelan


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