Ketanji Brown Jackson takes conservative Supreme Court majority to school

Ketanji Brown Jackson takes conservative Supreme Court majority to school

Justice Ketanji Brown Jackson has made it clear in her first two days on the Supreme Court that she is not just any new justice. She is a judge ready to do what needs to be done.

I have followed the court closely for most of my life. I remember asking to keep the TV on over dinner to watch Clarence Thomas’ confirmation vote in 1991. I was in middle school. I closely followed or covered the first terms of the other seven judges, all of whom took office after graduating from law school in 2005.

I have never seen a judge begin a high court career the way we see Jackson.

In all that time, I’ve never seen a judge begin a high court career in the way that we see from Jackson.

Most new judges take a little time to really get up to speed. Even if their votes count, new judges usually take a while before their presence is really felt on the court. As I wrote on Monday, however, the current composition of the court — and the cases the judges are scheduled to hear — could lead Jackson down a different path.

So far, she’s taken this different path.

From the first closing argument on Monday, in a Clean Water Act case, Jackson was fully engaged — raising important questions about the meaning of “adjacency” and engaging in back and forth with attorneys appearing in court.

It was Tuesday, however, in a voting rights law challenge to Alabama’s proposed redistricting cards, which a lower federal court found violated Section 2 of the law by diluting the influence of black voters, that Jackson left his first real mark on the court.

Despite the Voting Rights Act’s status as “one of the great achievements of American democracy”, as Justice Elena Kagan described it Tuesday, “in recent years, this statute has not worked well in this court.” Kagan went on to explain how the court has chipped away at the Voting Rights Act and its protections since Chief Justice John Roberts – a longtime skeptic of the law – joined the court. Detailing the ways Alabama’s arguments in Tuesday’s case would bring it down even further, she asked the state’s attorney, almost rhetorically, “So what’s left?”

It was a strong statement for a new judge to make about the rulings of her new colleagues over the past decade.

The judge’s evidence was factual. But this line of argument has been virtually excluded from legal debate in recent decades.

Minutes later, Jackson took things a step further, not only questioning recent court rulings, but opening up a line of reasoning — and reality — that had been completely missing from court discussions for decades. decades.

“I don’t think we can assume that just because race is taken into account doesn’t necessarily create an equal protection issue,” jackson said Alabama Solicitor General Edmund LaCour Jr. — and, just as likely, the judges by his side.

It was not an isolated point. It was a liquidation of a rejection of an entire motivating principle of the legal (and, at times, political) conservative movement. It was what I imagine was just the beginning of Jackson’s argument – on the “history and lore” conservatives’ own turf – against “racial-neutral” constitutional norms in a nation. (and a world) of regular, systemic and extreme examples of racism.

Referring to the “history and lore” standard – so often invoked by Thomas and others using some version of originalism or “original intent” as a means of constitutional interpretation – Jackson said: “[W]When I delved into that level of analysis, it became clear to me that the framers themselves had enacted the Equal Protection Clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.

The amendments and legislation at the time, she explained, were designed to help ensure that recently freed slaves were “truly made equal to all other members of society”. She backed this up by quoting and citing “the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment.”

Then Jackson, the first black female judge, quoted the lawmaker who introduced the Fourteenth Amendment as saying of its purpose: “[U]Unless the Constitution restricts them, these states will all, I fear, maintain this discrimination and crush the hated freedmen to death.”

Jackson then took us concisely to his point. “It’s not a neutral or race-blind idea,” she told LaCour, her colleagues, the room and the country of that original Fourteenth Amendment goal. The judge’s evidence was not new to historians or others studying the Civil War era and post-Civil War amendments. It was a fact. But this line of argument has been virtually excluded from legal debate in recent decades.

“[S]he is right in fact and in history,” Adam Server wrote. “[I]It’s just not something you hear from a judge.

Until you do.

As Rep. Ayanna Pressley, D-Mass., told me in February of the significance of President Joe Biden’s pledge to appoint a black woman to the court, “[W]What I do know is that when black women are at the table, you shake the table, and I don’t mean physically, I mean because you consider different issues.

Often during Biden’s tenure, we’ve heard pundits and others raise the question of whether Biden is “till then” or something similar.

Justice Ketanji Brown Jackson has been on the Supreme Court for only a few months and she’s only sat for four oral arguments so far, but it’s already clear that no one will ask her that question. Plus, it’s entirely possible that Biden’s nomination of Jackson is one of his most “current” contributions to history.

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