How would Justice Scalia have voted on Brown v. Board of Education?

The NYT's Adam Liptak asks that straightforward question in an intriguing little story out Tuesday.

According to Liptak, Scalia doesn't readily enjoy talking about the hypothetical concerning the famed 1954 case that banned segregation in public schools. The decision is hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text. LIptak writes that the weight of the historical evidence is that the people who drafted the 14th Amendment did not believe themselves to be doing away with segregated schools.

The question came up at the University of Arizona last month in what was billed as a conversation between Justice Scalia and Justice Stephen Breyer. Breyer asked Scalia about the case, but didn't exactly get a straightforward answer from Scalia. Writes Liptak on Scalia's answer:

"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.

But Plessy, decided in 1896, concerned the segregation of passengers on railroads. That is an easier case for originalists. For starters, railroads were long considered common carriers required to serve all customers equally.

In a 2005 profile in The New Yorker, Justice Scalia said he would have voted with the majority in Brown. But he did not explain why. Liptak writes that Scalia seemed to suggest that Brown reached the right result as a policy matter but that it was not compelled by the Constitution.

Still, in Arizona, Scalia was a fervent defender of the originalist approach. "Don't make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like," Justice Scalia said.

"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?"