Sam Brownback in Alito Confirmation Hearings

On Civil Rights: Robustly religious public square better than naked square

ALITO: Including both religious and secular symbols was not a violation.

BROWNBACK: What I hear in your opinions is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square.

ALITO: That was exactly what Jersey City had decided in that case.

BROWNBACK: We've had this 40 years of cases, I really hope we can have a public square that celebrates and not that's got to be completely naked. [What about] C.H. v. Olivia?

ALITO: This case involved a student who wanted to read the story of Jacob and Esau to the class. And the teacher said no. And we found that was a violation of treating religious speech equally with secular speech.

On Education: Stare decisis would have upheld separate-but-equal

ALITO: Plessy was certainly wrong.

BROWNBACK: Brown v. Board of Education overturned Plessy, after Plessy had stood on the books since 1896. 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. Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

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

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

ALITO: The court got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled. Separate facilities, even if they were identical, could never give people equal treatment under the law.