Justice Scalia and Dissents

"Scalia on Brown v. Board of Education: I Would Have Dissented"

When I saw that headline on Huffington Post, something didn't feel right. I fully admit that I am no fan of Scalia's judicial philosophy, but I digress. I then went to the link provided in the post, and read it twice; I saw no mention of Brown v. Board of Education. Problem. Finally, I saw this post over at Balkinization that included an update (and a video clip) that made sense. Scalia would have dissented in Plessy v. Ferguson, which brought constitutional imprimatur to the idea of "separate but equal" back in 1896 that the Brown decision overturned in 1954.

What I found interesting about this little episode was the ease with which I could believe that Justice Scalia would have dissented in Brown. Yet, I am glad that my very next instinct was not to believe it without some type of proof. Because, even with a lifetime tenure, Scalia saying that he would have dissented in Brown would be like stepping on a landmine of landmines.

Huffington Post has updated the first post I saw, so the link I have will be the updated version. Here is the link to the video clip if someone is interested in watching the discussion between Scalia and and Justice Breyer; it's actually interesting.