Ronald Turner (University of Houston Law Center) has posted A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education (62 UCLA L. Rev. Disc. 170 (2014)) on SSRN. Here is the abstract:
How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the U.S. Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but-equal doctrine in Plessy v. Ferguson. Additionally, in his recently published book, Justice Scalia stated that Justice Harlan’s dissent in Plessy is “thoroughly originalist” and, in a 1990 dissenting opinion, noted that Plessy was “upheld only over the dissent” of Justice Harlan, “one of our most historically respected Justices.” This Essay examines and criticizes Justice Scalia’s reliance on Justice Harlan as iconic authority for the proposition that Brown can be squared with Justice Scalia’s original public meaning variant of originalism.
And from the core of the argument (footnotes omitted):
"[L]ike most of his contemporaries, Harlan believed in the centrality of race and in the legitimacy of racial thinking. . . . Although Harlan was highly unusual in the courage, integrity, and decency he showed in racial matters, he nonetheless remained a person of his time.” He joined the Court’s pre-Plessy decision holding that a state criminal law’s penalty enhancement for adultery and fornication engaged in by black-white couples did not violate the Equal Protection Clause. And, three years after Plessy, Justice Harlan wrote the Court’s opinion in Cumming v. Richmond Board of Education. In that case, the Court held that a county school board did not violate the Equal Protection Clause when it closed an all-black high school and continued to operate a high school for whites. The school board’s “separate and unequal scheme” was deemed to be reasonable and therefore constitutional.
In light of Harlan’s views on white superiority and his prior rulings, what does Justice Scalia mean when he says that he would have voted with Justice Harlan in Plessy and characterizes the Harlan dissent as “thoroughly originalist”? What is originalist about Justice Harlan’s dissent? One possibility is that Justice Scalia agrees with Justice Harlan that the issue of the constitutionality of state mandated racial segregation in railway cars concerned the civil but not the social rights of African Americans. If Justice Scalia does not recognize the Reconstruction-era distinction between civil rights and social rights, the originalist ground for disregarding the views of that day and time remains unclear. If he is cognizant of and accepts the civil-social distinction, he must conclude that attending a desegregated school is a social, and therefore not a constitutionally protected, right.
UPDATE: The article is also available on the UCLA Law Review website, here.
Thanks to Michael Perry for the pointer.
Posted at 6:08 AM