Amid all the bad news about Republican men behaving badly, a judicial star was born this week. Justice Ketanji Brown Jackson made sure that her voice was heard at oral arguments. It’s well-known that I’m partial to Justices named Jackson. Ketanji joined Robert in that rarified company this week.
I think the media overrates the importance of oral argument. Few votes are changed, they are, however, entertaining. I hate to say anything good about him, but Justice Scalia gave oral argument more pizzazz. He enjoyed sparring with lawyers and dismissing arguments he disagreed with. I usually agreed with other Justices, but argument is a vital part of the law. Scalia loved arguing with his friend Ruth Bader Ginsburg and the court was richer for it.
Justice Jackson’s star shone brightly in the case of Merrill v. Milligan. It’s an Alabama case that seeks to eviscerate the Voting Rights Act based on late 18th Century originalism. KBJ stood up for the mid-19th Century drafters of the 14th Amendment. Call it progressive originalism.
“For decades, conservative justices have made a specific point to support many of their rulings on race: They insist that the Constitution is entirely “colorblind,” prohibiting any consideration of race under all circumstances. During oral arguments in Merrill v. Milligan on Tuesday, a case they will attempt to use to eradicate what remains of the Voting Rights Act, they advanced this theory once again. This time, however, Justice Ketanji Brown Jackson refused to cede ground to their revisionist history. In a series of extraordinary exchanges with Alabama Solicitor General Edmund LaCour, Jackson explained that the entire point of the 13th, 14th, and 15th Amendments was to provide equal opportunity for formerly enslaved people, using color-conscious remedies whenever necessary to put them on the same plane as whites. It was a masterclass in progressive originalism that illustrated exactly why Jackson is such a crucial addition to this ultra-conservative court.”
Yo, MJS don’t call them conservatives they’re right wing radical reactionaries.
Let’s quote Justice Jackson herself:
“The justice then went deeper, citing the Report of the Joint Committee on Reconstruction from 1866, produced by the lawmakers who drafted the 14th Amendment. “That report says that the entire point of the amendment was to secure rights of the freed former slaves,” Jackson explained. She continued: “The legislator who introduced that 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.’ That’s not a race-neutral or race-blind idea in terms of the remedy.”
Jackson went on to note that one purpose of the 14th Amendment was to provide a constitutional foundation to the Civil Rights Act of 1866, which “specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that act, to ensure that the other citizens, the Black citizens, would have the same as the white citizens.”
“With that background,” she told Alabama’s solicitor general, “I’m trying to understand your position [on] Section 2, which by its plain text is doing that same thing. It’s saying: You need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied. It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the 14th amendment given the history and background of the 14th Amendment.”
Unfortunately, that argument won’t fly with the reactionary majority of SCOTUS. Chief Justice Roberts will side with his wingnutty colleagues: He’s dedicated his time on the court to “proving” that the VRA is outmoded because systemic racism no longer exists. Talk about living in a bubble inside an ivory tower.
KBJ is destined to write stirring dissents to begin with. The rightists have the votes. But she and Justices Kagan and Sotomayor can fight the good fight and lay down markers for better days to come. It’s the fate of progressive justices when they’re in the minority. History will remember them.
Louis Brandeis was the first Jewish Supreme as well as the first modern liberal on the court. He’s better remembered than his reactionary colleagues. Everything that goes around comes around.
I realize that it’s fashionable to give up on the Supreme Court. Liberals have long minimized the importance of the court to electoral politics. Right wingers never did. That’s one reason why we’re in the mess we’re in. A reminder: Democracy is impossible without the rule of law. Never give up.
I wish Justice Jackson well. I know she’ll stand up for what she believes while still trying to win majorities for her viewpoint. It’s what great Justices do. It may take a while, but a change is going to come someday. For now, KBJ is the change.
Cassandra used Sam Cooke’s version of A Change Is Going To Come yesterday. Today’s last word goes to my 13th ward homeys, The Neville Brothers: