Justice Ketanji Jackson Brown schools the originalist SCOTUS
I-think4me
In the case of Merrill v. Milligan, Alabama is asking the court to overturn decades of precedent allowing a limited consideration of race to enable racial minorities to obtain equal political representation in redistricting.
The state argues that the equal protection clause of the Constitution’s 14th Amendment is interpreted as race-neutral, and so any attempt to consider race in redistricting would violate the equal protection of white voters. The court should therefore adopt a race-blind test when considering whether a state should be required under the Voting Rights Act to draw districts in which most people are racial minorities, Alabama says.
Arguments in favor of constitutional colorblindness have been in vogue for decades among conservative jurists, as it works to decimate race-conscious laws and policies like affirmative action and 1965′s Voting Rights Act.
But Jackson, who was nominated by President Joe Biden in February to replace the retiring Justice Stephen Breyer, told Alabama and the court that an original reading of the 1868 adoption of the 14th Amendment, which the Voting Rights Act is meant to operationalize, was anything but colorblind.
Jackson stated that she did not believe race being “taken into account ... necessarily creates an equal protection problem.” Instead, she looked to “the history and traditions of the Constitution” and “what the framers and the founders thought about.”
“When I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” Jackson said.
The original intent of the 14th Amendment can be found in legislative history and debates from the post-Civil War period of Reconstruction. According to Jackson, the 14th Amendment was adopted during this time “to ensure that people who had been discriminated against, the freedmen, during the Reconstruction period, were actually brought equal to everyone else in society.”
“I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves,” Jackson said.
Justice Ketanji Brown Jackson argued that the history of the 14th Amendment and Voting Rights Act showed that they were "race-conscious" efforts. (Photo: Anna Moneymaker via Getty Images)
She quoted an 1866 speech by Republican Rep. Thaddeus Stevens of Pennsylvania, indicating that the purpose of the 14th Amendment was to halt the ongoing deprivation of rights and equality from Black men and women across the former Confederate states.
“Unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen,” Stevens had said when introducing the amendment.
“That’s not a race-neutral or race-blind idea, in terms of the remedy,” Jackson argued.
The 14th Amendment arose from the failure of the Civil Rights Act of 1866 to protect the equal rights of the formerly enslaved, Jackson said. The force of the constitution had to back that law for it to function properly. And so Congress passed the 14th Amendment to specifically protect the equal rights of Black people.
“It was drafted to give ... a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens,” Jackson said.
At every step of the way, a consciousness of race underpinned the adoption of the 14th Amendment. The same is true of the Voting Rights Act, passed in the wake of the bloody 1965 march that the Rev. Martin Luther King Jr. led from Selma to Montgomery. That law was designed to put legislative heft behind the 14th Amendment.
Jackson’s originalist turn flips a common approach of conservative jurists — who have long justified their decisions with such arguments — against them. It also pokes at the bad history used by some justices in landmark cases this year, like Justice Samuel Alito’s inaccurate recounting of abortion law in overturning Roe v. Wade or Justice Clarence Thomas’ gun rights decision in New York State Rifle & Pistol Association Inc. v. Bruen.
It further highlights that history is still at play for laws before the court today. The same Alabama community that was denied equal rights in 1865 and marched for voting rights in 1965 is yet again being denied equal representation now.
A transformation of the Voting Rights Act into a race-neutral law, as Alabama is seeking, would roll back that community’s progress toward equality. Such a policy could even lead to the “biggest decline in Black and Latino representation in generations,” according to Harvard Law School professor Nicholas Stephanopoulos.
Hippie
I-think4me
Herman Adler
I-think4me
edwino
Herman Adler
Yep, they call themselves "originalist", but then twist and cherrypick the history to suit their activist agenda.
Lobo
By Steve Benen
After Herschel Walker launched his Republican U.S. Senate campaign in Georgia, his team didn't seem especially eager about sending him out on the campaign trail. For months, the retired athlete avoided public interactions with voters and turned down interview requests with mainstream journalists.
Describing his curious strategy of running for office while hiding, CNN noted in September, "Walker's schedule keeps him largely behind closed doors."
The first-time candidate is starting to speak out a bit more, however, and Raw Story highlighted Walker's latest media appearance this week.
Republican Senate candidate Herschel Walker doesn't think the late Rep. John Lewis would be a fan of the voting rights legislation named in his honor. The John Lewis Voting Rights Advancement Act would restore and strengthen parts of the Voting Rights Act of 1965, which the civil rights icon helped inspire with his activism, but Walker somehow believes the late Georgia congressman would oppose.
Georgia Public Broadcasting's Stephen Fowler posted an audio clip this week, from an interview in which Walker was asked about Sen. Raphael Warnock — the Georgia Democrat whom Walker hopes to replace — and his support for the John Lewis Voting Rights Advancement Act.
"You know what's sad about that — to use the name of a great man to brand something that is so bad, I think it is terrible to do," Walker replied. "Senator Lewis was one of the greatest senators that's ever been and for African Americans that was absolutely incredible. To throw his name on a bill for voting rights I think is a shame."
He added that the John Lewis Voting Rights Advancement Act "just doesn't fit what John Lewis stood for, and I think [Democrats] know that. And I think that it's sad for them to do this to him."
Oh my.
First, John Lewis wasn't a senator. Second, the legendary congressman and hero of the civil-rights movement devoted much of his adult life to the cause of voting rights. It's why his fellow Democrats honored Lewis by naming the bill after him.
Not even the most far-right members of Congress, who are staunchly opposed to the legislation, have tried to argue that the bill is somehow at odds with Lewis' legacy. Walker obviously had no idea what he was talking about.
As for Walker's own views on voting rights, in the same interview, the Georgia Republican added:
"[L]et's go to the voting rights, if you want to talk about voting. First of all, if you want to get people to vote, if they're legal to vote, you want to try to encourage people to vote — that's the most precious thing that you have — not encourage, but encourage. And what I mean by that is, you get things done now — don't talk about it after or talk about it during, but get it done right now. And no one is not legal to vote, why don't we go in and get the IDs and get everything done right now instead of waiting until it's time to vote and start talking about it. And I think that's what people got to remember."
Well, that ought to clear things up.
I imagine some may see this and think it's unfair to expect Walker to have a meaningful understanding of complex issues like voting rights. After all, he played football and struggled as a businessman, but he doesn't have a background in public service or political debates.
The fact remains, however, that in less than a year, Walker expects Georgians to elect him to the U.S. Senate, whether he's ready for the job or not.
edwino
Hippie
I-think4me
Herman Adler
edwino
Do any of the other justices share her confusion on this subject?