“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.
He would have voted to follow the founder's intent, which was to maintain a racist society.
From 19th-Century View, Desegregation Is a Test
By ADAM LIPTAK
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.--------------
Later in the Adam Liptak NYT article, Scalia says:
“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?”
On this we agree. "What equal protection ought to mean" gave us Plessy v. Ferguson, after all, and even Scalia says he would have dissented on that one. We disagree, however, on the nature of those Constitutional principles. Scalia, after choking on his own bile, suggests: Transportation: everybody gets to ride. Education: don't worry about it.