Why Can’t Justice Scalia Get it Right More Often?

The legal blogosphere was abuzz yesterday with the (as it turns out) false report that Justice Antonin Scalia, during an appearance at the University of Arizona College of Law, stated that had he been on the Court in 1954 he probably would have dissented from the majority opinion in Brown v. Board of Education – the landmark case that ended legally mandated school segregation.   In fact, Justice Scalia argued the opposite:  that Brown’s predecessor, Plessy v. Ferguson, was the case that was wrongly decided, and that he would have joined Justice John Marshall Harlan in famously dissenting from that case.

Scalia is certainly right that Plessy was wrongly decided, and is owed an apology by the reporter who misquoted him as suggesting otherwise.  The real question this raises, however, is why in other statements and decisions regarding the Fourteenth Amendment, Justice Scalia has seemed willing to ignore  overwhelmingly powerful arguments about the Amendment’s text and history.  He will have an opportunity to address such arguments in a key case coming up this term called McDonald v. City of Chicago, in which the Court is being asked to determine whether – and if so, how – the Second Amendment individual right to bear arms recognized by the Court two years ago in Heller v. District of Columbia is applied to, or “incorporated” against, state governments.

Speaking just this February at the Hoover Institution, Scalia argued (approx. 24:20) that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false.”  Justice Scalia is wrong, and, here too, he should be following the lead of Justice Harlan’s great dissenting opinions.  Dissenting in Maxwell v. Dow and Twining v. New Jersey over 100 years ago, Justice Harlan powerfully explained why the text and history of the Privileges or Immunities Clause of the Fourteenth Amendment demand that States respect the fundamental rights guaranteed by the Bill of Rights.  With the ratification of the Fourteenth Amendment, Justice Harlan explained, “[t]he privileges and immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty . . . was thus secured to every citizen of the United States, and placed beyond assault by every government.”  The Court’s contrary view, parroted by Scalia, that incorporation is false, gets the text and history dead wrong – in Harlan’s words, it “is opposed to the plain words of the Constitution, and defeats the manifest object of the Fourteenth Amendment.”  Over the last century a left-right-center scholarly consensus has developed around Justice Harlan’s arguments in Maxwell and Twining, a fact CAC noted in our amicus brief on behalf of preeminent Fourteenth Amendment scholars, filed during the cert. stage of the Supreme Court’s review of McDonald.

Hopefully, in keeping with his recent statement that the Court’s decision in Plessy was wrong as a matter of text and history, Justice Scalia will take the opportunity presented in McDonald to correct his past statements about incorporation, and to finally get the text and history of the Fourteenth Amendment right.