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BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas — I was there last year at the dedication of the school house, 50 years ago — that overturned Plessy.

Plessy had stood on the books since 1896. I don’t know if you knew the number. And I’ve got a chart up here. It was depended upon by a number of people for a long period of time.

You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that’s just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly — would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously…

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don’t.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases — and Sweatt v. Painter, the last one on the list, brought that out — was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated — if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.
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