Adam Liptak, the New York Times’ Supreme Court reporter, recently published an article in which he claims that Brown v. Board of Education, the case that held that the Equal Protection Clause of the Fourteenth Amendment prohibits racial segregation in public schools, is “problematic for originalists.”
He goes a step further, claiming that “originalists hate talking about Brown.”
Liptak is usually very careful to do his research and interview the people whose views he claims to summarize, but he dropped the ball this time. Had he read originalist scholarship or asked an originalist scholar about Brown, then he would know that Brown is no problem for originalism. And far from hating to talk about it, originalists have been doing so for decades.
Before we explore what Liptak missed, let’s consider why he’s bringing up Brown at all.
Although Liptak purports to be writing a straight news piece, he gives away his agenda with this line: “A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.” Liptak frames his article using the Supreme Court’s discussions of Brown in its recent decision, Dobbs v. Jackson Women’s Health, an originalist decision on abortion that Liptak seems keen to discredit.
The Brown-based critique of originalism is not original to Liptak. For decades, critics have claimed that Brown is so plainly right as a matter of justice and morality that, if originalism cannot reach the same result—as Liptak contends—then it must be rejected.
But Liptak’s repetition of an old argument simply proves that he hasn’t done his research. In the decades since it was first advanced, the argument has failed to dent originalism for two reasons.
First, as originalist law professor Ilan Wurman explains in his book A Debt Against the Living: An Introduction to Originalism, this argument “gets it backward.” Originalism is concerned with determining the meaning of the Constitution’s text, and thus it separates that question from the question of whether the Constitution is “just and worthy of obedience.”
Wurman summarizes it this way:
It may be that originalism cannot justify Brown. In that case we may have to abandon the Constitution. . . . The point is only that it is exceedingly dangerous to conflate interpretation and legitimacy, to ask what the Constitution must say before investigating what it does say. That is a sure way to get wrong answers.
In short, Liptak’s argument against originalism is not responsive to what originalism aims to do.
But the argument fails for another reason: originalism likely does justify Brown. We know this because, contrary to Liptak’s claim, originalists have been talking enthusiastically about this since Liptak was in law school more than 30 years ago.
In 1987, when Liptak was a second-year law student, future Supreme Court Justice Clarence Thomas—our most famous living originalist—published an article in the Howard Law Journal in which he made what might be called a “proto-originalist” argument (originalism was still in its infancy) that Brown was correctly decided because the Constitution’s plain meaning requires the government to be colorblind.
Later, Judge Robert Bork (another founding figure of originalism) argued that the Fourteenth Amendment’s original meaning embodied an equality principle and that judges may consider changes in sociological research to inform their understanding of whether a particular government action is unequal and, therefore, unconstitutional. This echoes what the Court did in Brown where it relied on sociological data to conclude that separate is “inherently unequal.”
Bork’s argument was further refined by Professor Christopher Green in an article published in 2006.
Other originalist professors have reached the same conclusion by different means. When Liptak was still a young lawyer, Professor Michael McConnell wrote an article aptly titled The Originalist Case for Brown v. Board of Education, in which he argued that historical evidence suggests that the framers of the Fourteenth Amendment thought it would require school desegregation.
Professor Wurman, among others, argues that the original meaning of the Privileges or Immunities Clause compels the same outcome that the court reached in Brown. And Professors Randy Barnett and Evan Bernick note the plausibility of this argument and argue, separately, that Plessy v. Ferguson, which established the separate-but-equal doctrine that Brown destroyed, was incompatible with an original understanding of the Due Process Clause.
All of this to say that originalists love talking about Brown. And although they disagree about how originalism reaches Brown’s result, they broadly agree that it does.
A good lawyer knows he cannot win a case by ignoring his opponents’ best arguments. Yet Liptak hasn’t merely failed to engage his opponents’ arguments; he has failed to acknowledge that they’ve made any responsive arguments at all.
Instead, Liptak supports his thesis with three pieces of anecdotal evidence. First, he recounts that Justice Antonin Scalia joked about how often critics of originalism asked him about Brown. Second, he says that once when Justice Stephen Breyer asked Scalia about Brown, Scalia “did not give a direct answer.” Third, Liptak quotes Margaret Talbot—a non-fiction writer and essayist, not an originalist scholar or even a lawyer—as saying, “it’s hard to see an originalist justification for [Brown].”
It’s hard to see why we should get our originalist scholarship from someone who is neither an originalist nor a scholar, so we can reject this piece of evidence out of hand.
As for Justice Scalia, Liptak places far more weight on his off-the-cuff statements than they can bear.
Although Scalia was probably the most influential originalist, he did not speak for all of them. Indeed, he spoke only for one originalist—himself—and his approach to originalism remains the subject of debate.
What’s more, Scalia’s extemporaneous remarks tell us very little about his views about Brown. In truth, Scalia had little occasion to engage deeply with Brown because it was decided before he was on the bench and has never been challenged.
Finally, Liptak ignores what is probably Scalia’s most complete discussion of Brown (which is still quite sparse), in a dissenting opinion in Rutan v. Republican Party of Illinois. There, Scalia argued that an originalist approach would reach the result in Brown because the Equal Protection Clause combined with the Thirteenth Amendment (outlawing slavery) “leaves no room for doubt that laws treating people differently because of their race are invalid.”
So Liptak dropped the ball by ignoring the many originalists who have addressed the very argument he calls discrediting and who think that originalism compels the same result reached in Brown.
Frankly, this is surprising. Yes, Liptak may oppose originalism on ideological grounds, but usually he is quite careful to do his research and to be fair to his opponents.
He is also a well-regarded journalist who knows that good practice requires him to talk to at least one originalist before making claims about all of them. What’s more, it would have been very easy for him to find originalist scholars willing to talk to him about Brown. Not only is he a high-profile reporter with whom many scholars would love to share their research, but he has repeatedly served as a panelist on The Heritage Foundation’s annual Supreme Court roundup event where, over many years, he has sat next to more than a dozen of them.
It is disappointing to see Liptak make so glaring a mistake. Hopefully it’s a one-off.
This piece originally appeared in The Federalist Society