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Conservative Bloggers Are Losing Their Shit Over Ketanji Brown Jackson's Objectively Correct History
B&S
The Supreme Court’s newest member, Justice Ketanji Brown Jackson, debuted at oral argument this week, and very quickly got under the skin of the conservative legal commentariat.
Merrill v. Milligan is the latest in a long line of cases brought by conservatives aiming to slowly bleed the Voting Rights Act of 1965 to death. The law—an effort to restrict racial discrimination in voting—is a thorn in the side of Republicans, primarily due to their desire to engage in racial discrimination in voting. As a result, the Republicans on the Supreme Court have kneecapped the law at every turn, limiting its applicability and undermining the mechanisms it created to combat voter discrimination.
Merrill is a challenge to Alabama’s gerrymandered congressional districts, which leave Black voters—over a quarter of Alabama’s population—with majority voting power in only one of the state’s seven districts. That arrangement almost certainly violates Section 2 of the Voting Rights Act, which prohibits states from abridging the right to vote on the basis of race.
In its defense, Alabama has advanced an aggressive argument: that although Congress enacted the Voting Rights Act to combat racial discrimination, race cannot be considered at all in its enforcement. That, according to Alabama, would violate the 14th Amendment’s guarantee of equal treatment under the law. If this argument were accepted in full, the government could not factor race into its remedial plans, even if their goal is ultimately racial equality.
The argument is so inherently absurd that it bears repeating: Alabama is claiming that it is unconstitutional to consider race when addressing racial discrimination. Next up, addressing gun violence without considering guns.
Jackson’s clear, common-sense refutation of Alabama’s position drew some applause from liberal court watchers, happy to see the progressive view of the Reconstruction Amendments articulated at the high court. It also drew some defensive posturing from the right, starting with Ed Whelan, a former clerk to Justice Antonin Scalia.
“By its plain text,” Whelan writes, “the 14th Amendment ensures that states…shall not deny any person the ‘equal protection of the laws,’ irrespective of the person’s race.” The italicized language is not in the Constitution, but was added by Whelan, who apparently felt the “plain text” needed some supplementing.
These arguments rely on the same basic obfuscation: They conflate the goal of the 14th Amendment, equal protection under the law, with the mechanisms for reaching that goal.
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