Justice Jackson makes waves in first Supreme Court arguments
Justice Ketanji Brown Jackson, the first Black woman on the court, has been a frequent questioner in her first week on the bench.
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Ketanji Brown Jackson shows how originalism is supposed to work
Jennifer RubinJustice Ketanji Brown Jackson outside the Supreme Court building in Washington last week. (Kevin Lamarque/Reuters) Justice Ketanji Brown Jackson outside the Supreme Court building in Washington last week. (Kevin Lamarque/Reuters)
Ketanji Brown Jackson, the newest Supreme Court justice and first African American woman on the court, made her presence known on Tuesday during oral arguments in a dispute over whether Alabamaâs redistricting plan is illegal.
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 Actâs 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 âcritical race theoryâ in schools (even though it not taught to children).
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Chief Justice John G. Roberts Jr. mouthed this notion in a 2007 case: âThe way to stop discrimination on the basis of race,â he wrote, âis to stop discriminating on the basis of race.â The same reasoning echoed in his ruling in 2013âs Shelby County v. Holder, which invalidated the preclearance provisions of Section 5 of the Voting Rights Act. Republicans celebrated the latter decision, which reinforced their conviction that Whites are victims of government attempts to address the ongoing inequities suffered by Blacks and other disadvantaged groups.
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This is of a piece with white-grievance proponentsâ infatuation with a single sentence from the Rev. Martin Luther King Jr.âs famous 1963 speech: âI have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.â This is often misconstrued as a condemnation of efforts to promote racial injustice, ignoring the rest of the speech and Kingâs lifeâs work. Indeed, King was dedicated to exposing enduring racism and devising legislative and moral responses to it. The result was, among other things, the Voting Rights Act of 1965, which specifically targeted measures that discriminated against Black voters in the South.
And that brings us to Jackson on Tuesday. Mark Joseph Stern writes for Slate:
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As Stern explains, this was a âmasterclassâ in originalism. And by that he means it was historically pristine originalism, not the faux originalism of the right-wing majority that cherry-picks its way through history to reach a desired partisan end.
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: âThe legislator who introduced [the 14th] amendment said that âunless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.â â Jackson observed, âThatâs not a race-neutral or race-blind idea in terms of the remedy.â
To borrow from the late Justice Ruth Bader Ginsburg, who once chastisedRoberts for âthrowing away your umbrella in a rainstorm because you are not getting wetâ: The Constitution does not bar Congress from giving umbrellas to those whoâve been rained on for centuries.
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The right-wingâs fixation on a âcolorblindâ society serves to strip Congress of the power under the 14th Amendment to address discrimination. The right-wing justices are so determined to show the Constitution to require their âcolorblindâ result that theyâve ignored the history, meaning and intent of the document they claim to revere.
The courtâs 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 â or even coherent ones (see itâs ruling overturning abortion rights). Thatâs what makes Jacksonâs remarks so effective. Essentially, she said, âIâm making sure everyone understands what is going on here.â
She might have made it more difficult for the court to adopt Alabamaâs extreme position. Election law guru Rick Hasen observes that âthere did not appear to be any appetite on the Court for Alabamaâs constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district.â He continues: âThat would lookradical: the Court would be overturning decades of precedent, beginning with the Courtâs 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.â 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.
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Jacksonâs analysis is not new. Voting rights advocates have been making similar arguments for years. But rarely â if ever â has a member of the court so authoritatively and definitively used the relevant legislative and constitutional history to demolish the âcolorblindâ 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 Bidenâs 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.
Jennifer Rubin writes reported opinion for The Washington Post. She is the author of âResistance: How Women Saved Democracy from Donald Trump.â Twitter
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Opinion
The Roberts court should end its assault on the Voting Rights Act
By the Editorial BoardOctober 7, 2022 at 7:00 a.m. EDT
The Supreme Court building in Washington. (Anna Moneymaker/Getty Images)
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Chief Justice John G. Roberts Jr. has overseen the Supreme Courtâs steady dismantling of the nationâs core voter-protection law, the Voting Rights Act of 1965. So it was a bad sign when the court took a case on a discriminatory Alabama congressional district map that lower courts had condemned. Judging from how the oral arguments proceeded on Oct. 4, the court might well weaken the act further, based on an implausible reading of the law, with potentially dire consequences for minority votersâ ability to elect candidates who represent them.
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The case should be simple â a âslam dunk,â as Justice Elena Kagan put it. Alabamaâs legislature drew a congressional district map that packed Black voters into one district and dispersed the rest into majority-White districts. Though the state is 27 percent Black, African Americans had a reasonable chance of electing a candidate of their choice in only one of the stateâs seven congressional districts, given how strongly the stateâs voting patterns correlate with race.
Those who are challenging the legislatureâs redistricting plan generated maps showing that the state could have created a second district in which Black voters had a shot at electing someone who represents them â and that these alternative maps still respected traditional redistricting principles, such as keeping districts compact. This is a crucial step in such lawsuits, because it shows that the state has viable alternatives that are fairer to Black voters.
Alabamaâs lawyers argued that these fairer maps are irrelevant, because the challengers considered race to draw them. The stateâs mapmakers did not use race as an explicit factor in drawing their lines, they argued, and the court should insist that the challengers show that they can create fairer maps based solely on race-neutral factors.
In other words, the state argued that those challenging a congressional map for having racially discriminatory effects, which Alabamaâs plainly does, should have to do so without taking race into account in a key part of the process. Yet Congress passed the Voting Rights Act in 1965 explicitly to help minority voting groups gain power at the ballot box. âIndifference to racial equality is exactly what [the act] is barring or prohibiting,â Justice Sonia Sotomayor emphasized.
Though the courtâs conservative justices appeared unreceptive to some of Alabamaâs most sweeping arguments, they seemed ready to uphold the stateâs map, anyway. If they do so, the way that they rule could have vast consequences for minority voting rights. The court has already neutered the Voting Rights Actâs Section 5, which contained the lawâs most robust check on states seeking to impose discriminatory voting policies. Then, last year, the justices weakened the actâs Section 2, which allows minority voters to challenge such policies in court. In this latest voting rights case, the court is poised to erode Section 2 still further, raising yet more barriers to those asking federal judges to restrain states from diminishing their ability to participate meaningfully in the political process.
A further assault on the Voting Rights Act would undermine both the intent of a law that was a signature achievement of the civil rights era and the meaningful participation of all Americans in the democratic system.
The Anti-Antiracist Court | The Forum | Jonathan Feingold
How the Supreme Court has weaponized the Fourteenth Amendment and Brown v. Board of Education against antiracism
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The Anti-Antiracist Court
How the Supreme Court has weaponized the Fourteenth Amendment and Brown v. Board of Education against antiracism
October 24, 2022
Jonathan Feingold
On October 31, the Supreme Court will consider two lawsuitsâSFFA v. Harvardand SFFA v. UNCâthat target race-conscious university admissions. The outcome is all but certain. The Courtâs rightwing majority will ban all universities from considering an applicantâs race. The decision will cap more than fifty years of judicial hostility to antiracist projects that followed the Civil Rights Act of 1964.
This result is itself extreme; it constitutionalizes white racial advantages and legitimizes racial inequality. But the Courtâs reasoning is also extreme. To justify a ruling that outlaws modest tools to remedy racism in America, the majority will deploy three of our countryâs most racially progressive precedents: The Fourteenth Amendment, Title VI, and Brown v. Board of Education. Through raw power and judicial fiat, the Supreme Court will transform antiracism mandates into commands for colorblindness. This fidelity to colorblindness threatens more than affirmative action. The Supreme Court is poised to deploy the same logic to further gut voting rights, curtail protections for indigenous communities, and outlaw all efforts to remedy racial inequalityâeven efforts implemented through colorblind means.
Ratified in 1868, the Fourteenth Amendment buttressed a nascent âabolitionist projectâ to reconstitute Americaâs racial order. Sitting between the Thirteenth Amendment (which abolished slavery) and the Fifteenth Amendment (which expanded suffrage), the Fourteenth Amendment extended to Black Americans citizenship and the rights and protections guaranteed by the Bill of Rights. Three yearsâ later, the Supreme Court observed that the three Reconstruction Amendments had âone pervading purpose . . . the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.â Professor Brandon Hasbrouck explains that for Black Americans, âthe Reconstruction Amendments guaranteed their right to establish and protect this new society.â Nearly two centuries later, Justice Thurgood Marshall put it plainly: âWhile the Union survived the Civil War, the Constitution did not.â Where an anti-democratic and white supremacist document once stood, the guarantee of a multiracial union took its place.
Yet within less than a decade, the Supreme Court usurped the democratic convictions and commitments that had birthed this promise. In the Slaughter-House Cases in 1873, the Court nullified the Privileges and Immunities Clause, which many had viewed as the Fourteenth Amendmentâs most important provision because its reference to the Bill of Rights infused into the Amendment rights and liberties essential to full citizenship. Ten years later in the Civil Rights Cases, the Court struck down Congressâ first attempt to prohibit anti-Black discrimination in public accommodations like inns, theaters, and restaurants. To justify the result, the Court rehearsed one of the earliest âreverse racismâ claims:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other menâs rights are protected.
By 1896, in Plessy v. Ferguson, the Supreme Court further entrenched racial hierarchy when it blessed the âseparate but equalâ doctrine. Within a single generation after the Civil War, the Supreme Court accomplished what the Confederacy could not: it constitutionalized an afterlife for slavery.
It would take nearly a century for Jim Crow to fall. In 1954, following massive grassroots resistance, geopolitical necessity, and decades of litigation, Brown v. Board chipped away at Plessy and rediscovered the Fourteenth Amendmentâs antiracist mooring. But the decision proved ineffectual; a decade after Brown, the Southâs commitment to Jim Crow remained unyielding. Congress responded with a suite a civil rights legislation. These laws, which included Title VI, reflected Americaâs renewed commitment to multiracial democracy and gave teeth to Brownâs promise of a post-apartheid America.
Yet as before, the Supreme Court defused democratic efforts to build a more perfect union. Between 1969 and 1971, President Nixon appointed four justices and reshaped the Supreme Court. Among those justices was Lewis Powell, who had openly opposed state-mandated integration, and William Rehnquist, who had advocated for Plessy as a Supreme Court clerk.
By 1974, the Supreme Court had defanged Brown and neutralized Title VIâs commensurate desegregation mandate. That year, in Milliken v. Bradley, the Supreme Court prohibited lower courts from mandating integration when the underlying segregation occurred across district lines. This holding constitutionalized white flight and other social forces that fuel and entrench racial segregation but lack an identifiable intent to segregate. Lamenting this reality, Thurgood Marshallâwho only two decades before had litigated Brown before the Supreme Courtâaccused the majority of âmak[ing] a solemn mockeryâ of Brown.
If Milliken neutralized Brownâs attempt to reinvigorate the Fourteenth Amendment, Regents v. Bakke turned Brown and the Fourteenth Amendment on their heads. Decided in 1978, Bakke comprised the Supreme Courtâs first substantive engagement with a remedial race-conscious university admissions program. Many view Bakke as a partial win for affirmative action because it introduced the âdiversity rationaleââwhich multiple Supreme Court majorities have invoked to uphold race-conscious admissions policies.
But reading Bakke as a partial win overlooks how the Courtâs majority turned the Fourteenth Amendment into a weapon against antiracism itself. Bakke presented a critical question: What standard of review should apply to remedial race-conscious policies? Five justices (including three of Nixonâs appointees) concluded that strict scrutinyâthe most demanding level of reviewâshould apply. The conclusion rendered all race-conscious efforts presumptively suspectâthereby constitutionalizing an equivalence between the Black Codes and Jim Crow, on the one hand, and affirmative action, on the other. The Supreme Court transformed the Fourteenth Amendment and Title VI from antiracism mandates into mandates against antiracism.
In the decades since, the Supreme Court has continued to wield our most racially progressive precedents as weapons of racial retrenchment. The pending admissions cases will further this tradition. The Court is poised to ban all race-conscious admissions policiesâeven when a historically white university considers race to promote âmeritocracy,â counter white racial advantages, or desegregate its campus. The Court will tell us the Fourteenth Amendment, Title VI, and Brown command this resultâeven as that result is celebrated by the same constellation of interests that protested the Fourteenth Amendment, contested Title VI, and maligned Brown. And when it does, the Supreme Court will accomplish what the longest filibuster in American history failed to do: constitutionalize an afterlife for Jim Crow.
