Let's talk about Ketanji Brown Jackson (1 Viewer)

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    coldseat

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    It looks like she made quite the impression during her first oral arguments on the SC bench. If this case is any indication, she could begin the lay down a lot of the constitutional and originalist legal road maps to overturn some of this conservative SC's wayward decisions.

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    And that brings us to Jackson on Tuesday. Mark Joseph Stern writes for Slate:

    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.

    As Stern explains, this was a “masterclass” 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: “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.”

    To borrow from the late Justice 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.

    The right-wing’s fixation on a “colorblind” 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 “colorblind” result that they’ve ignored the history, meaning and intent of the document they claim to revere.

    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.

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    I wouldn't mind seeing her throwing hints to states, a la Thomas, letting them know what cases to challenge and how to challenge them. Give the trumplicans and legislating from the bench justices a taste of their own medicine. Of course, the right would lose their collective minds and Thomas would lead the charge against her of providing road maps to potential litigants. The Right has already gone this far, they would simply vote against her arguments anyway. As has been said before and demonstrated numerous times, the right has no shame and hypocrisy means nothing to them.
     
    I wouldn't mind seeing her throwing hints to states, a la Thomas, letting them know what cases to challenge and how to challenge them. Give the trumplicans and legislating from the bench justices a taste of their own medicine. Of course, the right would lose their collective minds and Thomas would lead the charge against her of providing road maps to potential litigants. The Right has already gone this far, they would simply vote against her arguments anyway. As has been said before and demonstrated numerous times, the right has no shame and hypocrisy means nothing to them.

    I don't think anybody is under the delusion that her arguments are going to convince the conservatives on the SC. The SC will have to be remade over time (of course that means Democrats winning elections, 😮‍💨). But maybe she'll restrain their ambitions a bit by pointing out how hollow and disingenuous the conservatives arguments are most of the time. We'll have to wait and see.
     

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