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opinion | Ketanji Brown Jackson shows how originality should work

Ketanji Brown Jackson, the newest Supreme Court justice and the first African-American woman on the court, announced her presence on Tuesday during pleadings in a dispute over whether Alabama’s reclassification plan is illegal.

The case, Merrill v. Milligan, revolves around whether the state should create a second-majority black congressional district. Alabama and, likely, the right-wing majority in court say no, arguing that the Voting Rights Act’s requirement to do so is unconstitutional. However, Jackson blew up that argument, illustrating why she is such a powerful intellectual force and why fake originals trying to undo remedies for lasting racism have so much to lose.

First some background: Republicans have told themselves a useful fiction that racism is gone, and any attempt to educate about its lasting effects or remedy lasting discrimination is unfair to white people and unconstitutional. We see the phenomenon in their contrived war against “critical race theory” in schools (even if it is not taught to children).

Chief Justice John G. Roberts Jr. articulated this idea in a 2007 case: “The way to stop racial discrimination,” he wrote, “is to stop racial discrimination.” The same reasoning echoed in his statement in 2013 Shelby County v. Holder, invalidating the preclearance provisions of Section 5 of the Voting Rights Act. Republicans celebrated the latest decision, which reinforced their belief that whites are victims of government efforts to address the persistent inequalities of blacks and other disadvantaged groups.

Jonathan Capehart: Why black people think Jackson’s ‘seat at the table’ belongs to us too

This is a piece featuring white grievance advocates’ infatuation with a single sentence from Reverend Martin Luther King Jr.’s famous speech. from 1963: “I have a dream that my four little children will one day live in a country where they will not be judged by the color of their skin, but by the content of their character.” This is often misconstrued as a condemnation of attempts to advance racial justice, ignoring the rest of King’s speech and life’s work, who was indeed committed 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:

In a series of extraordinary conversations with Alabama Solicitor General Edmund LaCour, Jackson explained that the whole point of the 13th, 14th and 15th Amendments was to provide equal opportunities for previously enslaved people, using color-conscious remedies when necessary. to put them on the same level as whites.

As Stern explains, this was a ‘masterclass’ in originality. And by that he means that it was historically pristine originalism, not the fake originalism of the right-wing majority making its way through history to achieve 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 1866 report of the Joint Committee on Reconstruction. Jackson informed her colleagues, “The legislature that [the 14th] amendment said that “unless the Constitution restricts them, those states will all, I fear, continue this discrimination and crush the hated Freedman to death.” Jackson noted, “That’s not a race-neutral or race-blind idea in terms of the cure.”

To borrow from the late Judge Ruth Bader Ginsburg, who once reprimanded Roberts for “throwing your umbrella in a rainstorm because you don’t get wet”: not to stop Congress from giving umbrellas to those who have been rained on for centuries.

The right wing’s fixation on a “colorblind” society serves to strip Congress from power under the 14th Amendment to address discrimination. The right-wing judges are so determined to show the Constitution to… require their “color-blind” result that they have ignored the history, meaning and intent of the document they claim to respect.

The court’s conservative majority of six justices has repeatedly shown that it has the votes to achieve the radical, partisan results it desires, so it doesn’t need to provide convincing arguments — or even coherent arguments (see the ruling overturning abortion rights). ). That’s what makes Jackson’s comments so effective. Essentially, she said, “I’ll make sure everyone understands what’s going on here.”

She might have made it harder for the court to take Alabama’s extreme stance. Electoral law guru Rick Hasen notes that “the Court seemed disinterested in Alabama’s constellation of radical arguments, including one that would require evidence of racially discriminatory intent to require the creation of a minority opportunity district.” He continues: “That would… look radical: The Court would overturn decades of precedent, starting with the Court’s 1986 ruling in ginglies, which is a three-part threshold test for [Voting Rights Act] recasting of claims, followed by a look at the totality of the circumstances.” Instead, the court will likely fine-tune its decision to supposedly leave Gingles in place, but make it nearly impossible for plaintiffs to succeed in the 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 this with a purely original interpretation made it much more powerful.

No wonder Republicans were so desperate to keep her off court. To the dismay of the senators who scoffed at her qualifications (by insisting that President Biden’s decision to limit potential nominees to black women meant selecting someone of lesser quality), she showed that she not only deserves to to be there, but that there is no better judge that the Republicans can resist as they try to systematically dismantle civil rights.

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