James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected Plessy’s errors —tasks this article takes on in Parts II, III, and IV. I argue in Part II that Plessy failed to take into account social and historical context, the real world of race relations in 1896, and, in Part III, that the Court ignored Homer Plessy’s direct request that the Justices use empathy to imagine themselves in his position as an African American living under Jim Crow. As Goodwin Liu observes, part of Plessy’s failure involved “the radical formalism of constitutional interpretation in the face of contrary social facts.” Or, to enlist language from a Supreme Court decision handed down forty years after Plessy and involving different issues, the Plessy Court essentially “shut [its] eyes to the plainest facts of . . . life and deal[t] with the [issues before it] in an intellectual vacuum.”
"Judging in a Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made in Plessy v. Ferguson,"
Akron Law Review: Vol. 45
, Article 7.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol45/iss2/7