Civil Rights

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