Conservative bloggers are losing their shit over Ketanji Brown Jackson's objectively correct history lesson https://t.co/Lg5aUE4XDn pic.twitter.com/5UrRGNshLd
— Balls & Strikes (@ballsstrikes) October 6, 2022
Forget Amy ‘Blank White Sheet of Paper’ Comey Barret, Justice Brown Jackson is RBG’s real successor:
… Merrill v. Milligan is the latest in a long line of cases brought by conservatives aiming to slowly bleed the Voting Rights Act of 1965 to death. The law—an effort to restrict racial discrimination in voting—is a thorn in the side of Republicans, primarily due to their desire to engage in racial discrimination in voting. As a result, the Republicans on the Supreme Court have kneecapped the law at every turn, limiting its applicability and undermining the mechanisms it created to combat voter discrimination.
Merrill is a challenge to Alabama’s gerrymandered congressional districts, which leave Black voters—over a quarter of Alabama’s population—with majority voting power in only one of the state’s seven districts. That arrangement almost certainly violates Section 2 of the Voting Rights Act, which prohibits states from abridging the right to vote on the basis of race.
In its defense, Alabama has advanced an aggressive argument: that although Congress enacted the Voting Rights Act to combat racial discrimination, race cannot be considered at all in its enforcement. That, according to Alabama, would violate the 14th Amendment’s guarantee of equal treatment under the law. If this argument were accepted in full, the government could not factor race into its remedial plans, even if their goal is ultimately racial equality.
The argument is so inherently absurd that it bears repeating: Alabama is claiming that it is unconstitutional to consider race when addressing racial discrimination. Next up, addressing gun violence without considering guns.
During oral argument, Jackson addressed the argument head-on, saying that “the entire point of the [14th] Amendment was to secure the rights of freed slaves.” In other words, claiming that the 14th Amendment forbids race-conscious government action is not just wrong, it’s a complete inversion of the historical record, which shows that the amendment itself was a race-conscious effort to create parity between black and white citizens. To hammer the point home, Jackson pointed to the words of the Joint Committee on Reconstruction as well as the text of the Civil Rights Act of 1866, both of which made clear that the goal was not race-neutrality as a general principle, but in particular the equality of freed slaves…
Perspective: Justice Jackson offered Democrats a road map for securing equal rights. https://t.co/l5bfrn2ewb
— The Washington Post (@washingtonpost) October 10, 2022
… Jackson’s move surprised court watchers because originalism is usually associated with the contemporary conservative legal movement — an expanded Second Amendment, the rollback of women’s reproductive rights and more. One writer referred to her questioning as a rare example of “progressive originalism” — trying to divine the Constitution’s original meaning from the historical record to guide liberal policymaking and jurisprudence.
But in reality, such a version of originalism isn’t new. Instead, Jackson’s constitutional interpretation joins a storied tradition in the struggle for equal rights. First abolitionists and later the “Radical Republicans” who shaped Reconstruction — the very people whose ideas Jackson cited — tied their movement to the founders’ supposed original intentions. By resurrecting this tradition, Jackson isn’t simply co-opting a conservative legal philosophy. She’s also giving the Democratic Party a road map for effective constitutional politics.
Maybe the most enduring quotations about the Constitution’s relationship with slavery come from William Lloyd Garrison, who called the document a “covenant with death” and an “agreement with hell.” But while some abolitionists like Garrison scorned the Constitution, many others knew that they could not afford to cede the legacy of the founding to enslavers. The early 19th century was, according to historian Eric Foner, a time when people “cared deeply about constitutional interpretation.” Whatever flaws the founders had, these abolitionists understood that if their goal was to build power, they had to connect their efforts with the founding…
To borrow from Ruth Bader Ginsburg, who once chastised Roberts for “throwing away your umbrella in a rainstorm because you are not getting wet”: The Constitution does not bar Congress from giving umbrellas to those who’ve been rained on for centuries. https://t.co/hX4skrFKWD
— Jennifer "Pro-privacy" Rubin (@JRubinBlogger) October 6, 2022
… The case, Merrill v. Milligan, centers on whether the state must create a second majority-Black congressional district. Alabama and, likely, the right-wing majority on the court say no, contending that the Voting Rights Act’s requirement to do so is unconstitutional. Jackson, however, blew up that argument, illustrating why she is such a potent intellectual force and why faux originalists trying to undo remedies for enduring racism have so much to lose.
First, some background: Republicans have been telling themselves a useful fiction, namely that racism has vanished, and any attempt to teach about the enduring effects or to remedy enduring discrimination is unfair to White people and is unconstitutional. We see the phenomenon in their contrived war against “critical race theory” in schools (even though it is not taught to children)…
Jackson took her colleagues through the history of the Civil War amendments, revisions to the Voting Rights Act in 1982 and even the Report of the Joint Committee on Reconstruction from 1866. Jackson informed her colleagues: “The legislator who introduced [the 14th] amendment said that ‘unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.’ ” Jackson observed, “That’s not a race-neutral or race-blind idea in terms of the remedy.”…
The court’s six-justice conservative majority has shown repeatedly that it has the votes to achieve the radical, partisan outcomes it desires, so it need not make convincing arguments — or even coherent ones (see its ruling overturning abortion rights). That’s what makes Jackson’s remarks so effective. Essentially, she said, “I’m making sure everyone understands what is going on here.”
She might have made it more difficult for the court to adopt Alabama’s extreme position. Election law guru Rick Hasen observes that “there did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district.” He continues: “That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for [Voting Rights Act] redistricting claims, followed by a look at the totality of the circumstances.” Instead, the court is likely to finesse its decision to ostensibly leave Gingles in place but make it near-impossible for plaintiffs to succeed in Voting Rights Act claims.
Jackson’s analysis is not new. Voting rights advocates have been making similar arguments for years. But rarely — if ever — has a member of the court so authoritatively and definitively used the relevant legislative and constitutional history to demolish the “colorblind” charade. And doing so with a purely originalist interpretation made it much more powerful.
No wonder Republicans were so desperate to keep her off the court. To the dismay of the senators who sneered at her qualifications (insisting that President Biden’s decision to limit potential nominees to Black women meant he would select someone of lesser quality), she demonstrated that she not only deserves to be there but that there is no better judge out there who can stand up to Republicans as they try to systematically dismantle civil rights.
Why Black people feel Jackson's 'seat at the table' is ours, too – MSNBC https://t.co/UiEufXuggO
— Heart of my country (@cindi_feriby) October 11, 2022
… Jackson spoke up early during Monday’s arguments in a case challenging the Clean Water Act, asking questions before half her colleagues did and within the first 10 minutes. On Tuesday, she took the facile reasoning about laws “deeply rooted in this Nation’s history and tradition” that Justice Samuel A. Alito Jr. used to help overturn Roe v. Wade and turned it into a sledgehammer against Alabama’s gerrymandered congressional maps.
Jackson’s skillful questioning not only set legal Twitter aglow; it also became another item of pride for African Americans, especially Black women. “I love that Justice Jackson isn’t doing the thing that a lot of Black women are expected to do when we start a new job chock full of white folks which is to be quiet and not make a fuss. To know our place,” journalist Imani Gandy tweeted. “She’s come out SWINGING and I LOVE IT.”…
But Jackson knows that bouquets today could turn into brickbats tomorrow. “There is no doubt that I will have my share of pure bad luck,” she said. Bad luck could come in many forms. I’m thinking particularly that it could manifest as other African Americans wondering why Jackson isn’t as forthright as they want her to be on issues important to them. And she probably won’t always be, so long as the law sometimes leads her as a justice to a place that doesn’t align with her preference as a person…
In the new Apple TV Plus documentary “Sidney,” Oprah Winfrey recounts life-changing advice she received from revered Black actor Sidney Poitier. It was during a birthday party for Winfrey at the height of her reign as queen of daytime TV. After being at first beloved by Black audiences, she eventually found herself bedeviled by accusations that she wasn’t Black enough. Poitier, who went through the same swing in Black public sentiment, gave Winfrey an insight she said guided her ever since.
“It’s difficult when you’re carrying other people’s dreams,” Winfrey recalled the actor telling her. “And so you have to hold on to the dream that’s inside yourself. And know that if you are true to that, that’s really all that matters.” That heavy load — a burden for anyone to carry — is only weightier when you’re the first of your kind to crack the stratosphere.
The last words of Jackson’s Library of Congress speech showed that she relishes bearing our dreams. “I have a seat at the table now, and I’m ready to work,” she said to thunderous applause. If her first days on the bench are any indicator, Jackson is wasting no time being heard and representing the best of us. It’s our task to let her do it her own way.
🔥🔥🔥 Justice Jackson talks about the 13th, 14th, and 15th amendments being adopted "in a race conscious way."
Talking about the reports surrounding the 14th Amendment, she concludes, "That's not a race-neutral, or a race-blind" idea.
— Chris “Subscribe to Law Dork” Geidner (@chrisgeidner) October 4, 2022
Here is that moment from Justice Jackson: https://t.co/ikfEIOKJvC
— Chris “Subscribe to Law Dork” Geidner (@chrisgeidner) October 4, 2022
sab
They can put third rate justices on the court who vote badly. But first rate justices write first rate opinions, either for the majority or in dissent. And those opinions live on.
A Ghost to Most
The handmaiden is not a blank white sheet of paper. She’s a blank white sheet of Koup Klutz Klanner.
James E Powell
The right-wing justices know this history but they intend to ignore it. They know that they can allow & promote discrimination against African Americans & a large majority of white Americans will fully support it. Republicans rely on the same thing.
James E Powell
@sab:
Dissents might be entertaining or interesting to legal academia, but when it comes to having any impact on American life, they are as effective as a comment on an almost top 10,000 blog.
sab
@James E Powell: Not true. When things swing the other way dissents often are the basis for the new majority’s reasoning
ETA Especially when the majority is nuts and unhinged from prior legal reasoning.
Anne Laurie
Towards the end of her confirmation hearing, Lady Cunning-Bunny was asked if she had any notes. She held up a blank white sheet of paper — and smirked.
Who needs notes, when I’ll be voting with a secure majority that has no interest in actual facts?
sab
@Anne Laurie: I tend to call her by her married name : Mrs Jesse Barrett. But I do love the cunning barrett name, especially since that rabbit, out of its notre dame hole, ain’t so bright.
Damien
@sab: I also think good dissents and even Justices’ questioning/reasoning from the bench in obviously losing cases can serve, as in this case with AJKBJ, to consolidate disparate strains of information and history to explain their legal theories in a way that can connect with and inform people who would otherwise never have a reason to go on such a journey.
I know that I personally would never have dug into the historical context for the 14th Amendment and its related legislation, but I feel more confident in arguing the position of further legislative VRA scaffolding with this knowledge.
Sometime, unfortunately, the legal path to progress isn’t a sprint OR a marathon, but instead it’s a goddam slog through an unmapped mountain pass; AJKBJ helped light another little beacon forward and illuminated more of the path we’ve already tread.
James E Powell
@sab:
Are you sure often is the right word? I think you need a properly formatted footnote there.
The current majority is not nuts or unhinged. They are relentless and merciless. When their bold move on abortion does not produce a Democratic wave, it will encourage them to keep going on their plan to declare the 20th century unconstitutional.
Another Scott
KBJ is a good one. [Meaning, a good human being, good citizen, good American, good lawyer, good judge, good justice, good example, etc.]
Meanwhile, …
BlueVirginia.US:
Least surprising thing today, given how little time Youngkin spends in Virginia…
Cheers,
Scott.
zhena gogolia
@Anne Laurie: Yeah, that was supposed to show how cool she was, and I just thought, what contempt for the process.
zhena gogolia
@James E Powell: Have fun in the cave.
HinTN
@James E Powell: I disagree. These dissents serve as markers for those who come after and find the will and the means to clean up the mess made by excreably bad majorities
ETA: and if course @sab said it earlier and better.
schrodingers_cat
@James E Powell:Are you predicting the future? Can I call you for investment advice?
Alison Rose
@Anne Laurie: It never ceases to baffle me how conservatives are SO PROUD of being SO DUMB.
schrodingers_cat
@Alison Rose: They don’t think they are dumb. We underestimate them at our own peril. Their appeal is to emotion not intellect. A lot of people don’t like it when things change too fast.
ColoradoGuy
@Alison Rose: It’s a marker for power, similar to the stereotype of the brutal Southern sheriff. They can be a lot stupider, and far more brutal, but you’re the one that’s in jail.
Omnes Omnibus
@James E Powell: When, not if? And, yes, current dissents can serve as markers for later decisions to follow.
Alison Rose
@schrodingers_cat: Oh, I know they think they’re all brilliant. But they’re proud of things that clearly belie such a claim without seeming to realize or care.
MisterDancer
@Omnes Omnibus: Justice Jackson is talking to more than future precedent.
She’s speaking to us, right now. That we feel disempowered and unable to effect change – – insulted to even consider such improvements, in fact – – is a massive part of how we got here.
She’s saying that we Americans have a history of doing right. That it’s worth remembering and even, yes, holding to it, in these moments. That our history, our real history, doesn’t stop mattering just because asshats want to twist it to gain power.
Quite the opposite, in fact.
trnc
That’s been the republican SOP for at least 30 years.
Dangerman
Must be tired; read title as “Jackson Brown”, which would rock, indeed. Seen him twice (once acoustic) and, damn, that man is talented. If seeing KBJ’s name always reminds me of JB, well, that would work.
Omnes Omnibus
@MisterDancer: That is true, but I was responding to a specific statement.
Cameron
“Know her place?” Of course she knows her place – it’s on the Supreme Court.
MisterDancer
@Omnes Omnibus: Apologies. I’m trying to add onto your statement when I’m tired and running around, and I should have been more thoughtful about the approach.
No offense to your correct comment was meant in what I said.
Starfish
I beg you to quit comparing our first Black woman justice to RGB. When RGB died, her clerks were in DC to honor her memory, and that is when the public realized that over all the years on the court, RGB had only ONE Black law clerk in all her years on the Supreme Court.
—
Speaking of human rights, the notorious Evin Prison in Iran was on fire. This is where the protestors were being held. There were gunshots, and people are taking the expedient death of many protestors as the government cleaning up its problem with protestors. It looks horrible, and there were several Iranian Americans in the prison including Siamak Namazi who has been serving a ten year prison term there on bogus nonsense since 2016.
Thor Heyerdahl
@sab: I saw one nickname online for her – not sure if it was here – as Amy Coathanger Barrett.
James E Powell
@Omnes Omnibus:
I’m looking for examples.
Omnes Omnibus
@James E Powell: Harlan’s dissent in Plessy.
Nora
@James E Powell: Justice Douglas’ dissent in Poe v. Ullman. When the composition of the court changed between that case and Griswold v. Connecticut, Douglas wrote the majority decision in Griswold.
James E Powell
@Nora:
@Omnes Omnibus:
Okay, that’s two in a century.
Omnes Omnibus
@James E Powell: Whatever.
Starfish
@Starfish: Justice Jackson has already hired the number of Black law clerks as RBG did over her long tenure on the court. Mission accomplished.
From Bloomberg Law:
SuzieC
Justice Jackson will inspire black women to turn out, vote, and vote for Democrats. That is just the beginning of the lasting impact she will have. I am absolutely thrilled with her beginning on the Court and her remarks in the Alabama voting case.
GibberJack
@ColoradoGuy: Was going to mention the power aspect, thanks for adding that.
I also think a lot of the stupid shit conservatives do is an expression of that. Like their hostility to masks and covid vax: “Because suck it, libs, we’re calling the shots here. It may kill a million people but it’ll kill a bunch of you libs. And we made that happen. We decided that.”
I think the hostility toward education has a component of it, too. “We don’t need no education and we still have big trucks and a boat and a house and we run most state leges”.
Boebert is the epitome of this. Literally uneducated, she’s a US rep making 170 grand a year shitposting. It’s part of why she’s popular with her base. It’s an exercise of power to elevate the utterly unqualified to such a position. Like Caligula making his horse a senator. A power move, putting the Roman Senate in their place with a big contemptuous middle finger.