New York Daily News

This isn’t close to the best example of Antonin Scalia’s bigotry.

Scalia’s critics took exception to comments he made during oral argument Wednesday in a key affirmative action case. Mother Jones said Scalia suggested “African American students might belong at less rigorous schools than their white peers.” 

Here’s what he really said, notwithstanding the New York Daily News misquote.

In context, this is devil’s advocacy in the voice of a conservative septuagenarian who came of age when it was socially acceptable to be awful to black people. A less anachronistic justice would have rendered it as an inoffensive question about the merits of slow-tracking students—disproportionately minorities—who come from bad schools with poor instruction or have lower attainment than their peers. As it happens, slow-tracking is hard to defend on the merits. It’s harder still when described as a workaround for inherent black inferiority.

But the underlying sentiments were repurposed from a brief written in opposition to affirmative action. Conservatives are understandably upset that people are stripping key phrases to attribute the brief’s claims to Scalia. There are plenty of reasons to dislike Scalia, but the sin here is about as egregious as Harry Reid (three years younger) praising Barack Obama for speaking without “negro dialect.”

For fun I’d add that most of Scalia’s defenders demanding full, contextual reading of his words, happily asked the Supreme Court to vandalize Obamacare, and revise the history of its intent and meaning, on the basis of a phrase taken out of context