If there is a topic Justice Antonin Scalia does not relish discussing, it is how he would have voted in Brown v. Board of Education had he been on the Supreme Court when it was decided in 1954.
The question came up last month at the University of Arizona in what was billed as a conversation between Justice Scalia and Justice Stephen G. Breyer. The discussion, between the court’s two primary intellectual antagonists, bore the relationship to a conversation that a fistfight does to a handshake. The justices know how to get under each other’s skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm.
The Brown decision, which said the 14th Amendment prohibited segregation in public schools, is hard to square with Justice Scalia’s commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text.
Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.
Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.
Originalists hate the subject. Justice Scalia has called it “waving the bloody shirt of Brown.”
About 20 minutes into their discussion in Arizona, Justice Breyer turned to the case.
“Where would you be with school desegregation?” the justice asked with a satisfied expression. “It’s certainly clear that at the time they passed the 14th Amendment, which says people should be treated equally, there was school segregation and they didn’t think they were ending it.”
Justice Breyer, who has a more flexible view of constitutional interpretation than Justice Scalia, said the solution was to identify the value underlying the language in the Constitution and to ignore the specific understandings of those who ratified it.
Justice Scalia, in high sarcasm mode, said relying on general values was not a legitimate way to conduct judicial business, and dismissed the idea that using such a method was easy.
“Piece of cake,” Justice Scalia said, his voice dripping with disdain. “Piece of cake. Following the ‘values.’ ” He spat out that last word as though he had just taken a spoonful of anthrax.
But Justice Scalia did not give a direct answer to how he would have voted in Brown.
“As for Brown v. Board of Education, I think I would have” — and then he changed directions. He said he would have voted with the dissent in Plessy v. Ferguson, the case Brown overruled.
But Plessy, decided in 1896, concerned the segregation of passengers on railroads. That is an easier case for originalists. For starters, railroads were long considered common carriers required to serve all customers equally.
“The originalist constitutional argument against racial segregation was always stronger in the public transportation than the public schools context,” Michael J. Klarman, now a law professor at Harvard, wrote in the Virginia Law Review in 1994.
In a 2005 profile in The New Yorker, Justice Scalia told Margaret Talbot that he would have voted with the majority in Brown. But he did not explain why, and Ms. Talbot wrote that “it’s hard to see an originalist justification for it.”
Originalists committed to justifying Brown have two basic approaches.
One is to adopt a version of Justice Breyer’s theory. After his Supreme Court nomination was defeated, Robert H. Bork wrote that “the inescapable fact is that those who ratified the amendment did not think it outlawed segregated education.”
But “equality and segregation were mutually inconsistent, though the ratifiers did not understand that,” Mr. Bork wrote, meaning that judges were entitled to apply “the purpose that brought the 14th Amendment into being” — “equality before the law.”
Jed Rubenfeld, a law professor at Yale, called this “pure result-oriented reasoning.”
“Originalism is no longer the method it claimed to be if judges are free to reject the specific understanding of a constitutional provision in light of a more general putative ‘purpose’ such as ‘equality,’ ” Professor Rubenfeld wrote in The Yale Law Journal in 1997.
The other main way originalists justify Brown is by gathering historical evidence to show that the people who adopted the 14th Amendment did indeed mean to ban segregated schools. Justice Scalia nodded in the direction of that argument in Arizona, saying that “although some states continued to have schools like that, some abolished segregated schools after it was passed.”
The most ambitious reconsideration of the historical record was by Michael W. McConnell, now a law professor at Stanford, in the Virginia Law Review in 1995. Drawing mostly from Congressional debates a few years after the 14th Amendment was ratified, Professor McConnell showed that there was substantial support, in Congress at least, for school desegregation. But he conceded that segregation “almost certainly enjoyed the support of a majority of the population even at the height of Reconstruction.”
In Arizona last month, Justice Scalia chose his words carefully. He seemed to suggest that Brown reached the right result as a policy matter but that it was not compelled by the Constitution. Still, Justice Scalia said, that is no reason to favor Justice Breyer’s more flexible view of how to determine the meaning of the Constitution.
“Don’t make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like,” Justice Scalia said.
“Hitler developed a wonderful automobile,” he went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.
“The test is over the long run does it require the society to adhere to those principles contained in the Constitution or does it lead to a society that is essentially governed by nine justices’ version of what equal protection ought to mean?”