The Daily Parker

Politics, Weather, Photography, and the Dog

Yay Justice Ketanji Brown!

The Tweet I highlighted earlier has this context behind it:

Justice Ketanji Brown Jackson turned the favored tactic of her right-wing peers on its head Tuesday, advancing an originalist argument to support protections for racial minorities. 

She made the comments during oral arguments in Merrill v. Milligan, a case that gives the conservative majority the opportunity to gut the Voting Rights Act even further.

She read out a quote from the legislator who introduced the [14th] amendment, and went on to explain that the 14th Amendment was enacted to give a constitutional foundation to the Civil Rights Act of 1866 that was “designed to make people who had less opportunity and less rights equal to white citizens.”

Josh Marshall loves it:

It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.

It would be possible to argue that 150+ years since the passage of the Civil War amendments represents a cooling of the ambitions of the statecraft of the 14th Amendment and an effort to work out some equitable balance between localism and national power. There’s some truth to that. But that’s not an argument available to anyone who argues for originalism. With that you have to go back to what the Reconstruction Congress thought they were doing. And what they were trying to do was quite radical in the context of the 80 preceding years of American national history — indeed, quite radical in some ways in relation to today.

Will this cause the "originalists" on the Court any hesitation before finding against Black voters through tortured, motivated, ahistorical reasoning? Of course not. But the more the centrist Justices call out the three Trump appointees and Thomas for their partisan hackery, the more likely we will see some real court reform.

Comments are closed