In the abortion decision, Judge Alito wrote that “by the time the 14th Amendment was passed, three-quarters of states had made abortion a crime at any stage of pregnancy, and the rest of the states would soon follow.”
The Southern Manifesto repeated the point again.
“When the amendment was passed in 1868, there were 37 union states,” the manifesto reads. “Each of the 26 states that had substantial racial disparities among populations either approved the operation of pre-existing segregated schools or subsequently established such schools through action by the same legislative body that considered the 14th Amendment.”
The unanimous opinion in Brown didn’t really conflict with the idea that it couldn’t be justified using the tools of originalism. “At best,” the opinion said, the historical evidence was “inconclusive.”
Before Justice Scalia died in 2016, he and Justice Breyer, who retired in June, occasionally appeared in public to debate the interpretation of the constitution. Justice Breyer enjoyed telling Justice Scalia about Brown.
“Where would you be with the desegregation in school?” Justice Breyer asked his colleague in 2009 during a performance at the University of Arizona. “It’s certainly clear that the moment they passed the 14th Amendment, which says people should be treated equally, there was school segregation and they didn’t think they were putting an end to it.”
Judge Scalia did not immediately answer. In other institutions, he approved the decision. “Although Scalia says he would have voted with the majority in Brown,” Margaret Talbot of The New Yorker wrote in a profile from 2005“it’s hard to see an original justification for it.”