Supreme Court Justice Ketanji Brown Jackson Is Here To VERY POLITELY F*ck Your Sh*t Up!

Just don't call the Court illegitimate, OK?

The US Supreme Court heard oral arguments yesterday in an Alabama redistricting case that, given the rightwing majority on the Court, has the potential to kill off what's left of the Voting Rights Act after previous Supreme Court rulings chopped it to little pieces. The case involves a lawsuit against the redistricting map drawn by the Alabama Legislature, which created a single congressional district where a majority of adult voters are African American. That means that even though Black people make up about 27 percent of the state's population, Black voters will only be the majority in one of the state's seven districts.

In the Before Times, such clear under-representation of Black voters would have been an obvious violation of Section 2 of the 1965 Voting Rights Act, which prohibits any election practices that deny or abridge the right to vote — including diluting the votes of minority groups on the basis of race. As Justice Elena Kagan said during yesterday's arguments, the case ought to be "kind of a slam dunk if you just take our existing precedent the way it is, and the three judges below all found this." Kagan was referring to the January ruling by a three-judge appeals panel that tossed out the map as a clear violation of the Voting Rights Act — and if you're keeping score, the appeals judges were two Trump appointees and a Bill Clinton appointee.

Read More:

 Federal Court Tosses Alabama's Preposterous Racial Gerrymander 

 Supreme Court Conservatives Say Racial Gerrymanders Are Very Cool, Very Legal 

But we don't do Voting Rights anymore, so in February, the Supremes stepped in and stayed the appeals court decision, meaning that the vote-diluting map will govern this fall's elections in Alabama, and now the Court will decide whether we really need to protect minority voting rights at all if it means white people might have their electoral advantages diminished.

What About White Voting Rights?

That's pretty much the argument made by Alabama Solicitor General Edmund LaCour Jr., who said that following the appeals court's order to carve out a second majority-Black congressional district would amount to an illegal "racial gerrymander" that would mean "discriminating in favor of one racial group." Amazingly — although nothing these guttermuppets come up with should be surprising — LaCour insisted that the Voting Rights Act was "at war with" the 14th Amendment's guarantee of equal protection, since the VRA requires taking race into account when drawing district maps.

Yep, It's the old "reverse racism" bullshit in yet another new wrapper, and there's a pretty fair chance the Court will ultimately go for it in some form, as if the Voting Rights Act, passed to make sure minority voters wouldn't be disenfranchised, should instead be magically neutral on race.

If you just can't get enough Supreme Court audio in your life, here are the full arguments (the echoey audio glitch at the very start is fixed quickly):

 youtu.be 

Kagan: Remember When Voting Rights Were A Thing?

Elena Kagan, seeing the writing on the wall, pointed out that the Voting Rights Act is "one of the great achievements of American democracy," and that ensuring minority access to political power on an equal footing with the white majority is "a pretty big deal." She noted, a bit acidly, that the law has "has not fared well in this Court," what with the 2013  Shelby County decision that gutted preclearance of voting laws in areas with a history of discrimination, and last year's  Brnovich v. DNC decision, which made it far more difficult to challenge voting laws that have the effect of disenfranchising voters. And in fact, she reminded her colleagues, Congress didn't require any proof that voting changes were intended to discriminate, and specified that any discriminatory outcome against minority voting rights was a violation of the law.

With the current case, Kagan said, the Court may well make it near impossible to challenge redistricting that dilutes minority voting rights.

You're asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on.

So what's left?

LaCour said that since there was record Black turnout in 2016 and high Black voter registration in 2018, there wasn't any dilution of Black voting power anyway, and also what about the "traditional" parameters of drawing voting lines, like keeping "communities of interest" in the same district and also hewing fairly closely to existing districts, and also let's just please not keep bringing race into everything so we can move beyond it.

We'll also note that LaCour evaded answering Kagan's question about whether he believed the VRA would allow Alabama to someday draw an electoral map with zero majority-Black congressional districts, in the name of being race-neutral. He never got more specific than suggesting that would just depend on the circumstances of how maps got drawn.

Justice Jackson, The Originalist

Justice Ketanji Brown Jackson, hearing only the third case of her Supreme Court career, had come loaded for disingenuous bear, and took the Court to school on why both the 14th Amendment and the Voting Rights Act shouldn't be treated as if they require a fictional neutrality on race. And to do it, she very deliberately used "originalist" rhetoric like a jujitsu master, arguing that if you fuckers really want to pay homage to the "original intent" of the 14th and 15th Amendments and the VRA, you'd better damned well acknowledge their authors were anything but neutral on matters of race. Here's her history lesson:  

“Alabama is trying to argue that, by taking race into account, the Voting Rights Act violates the 14th Amendment. Enter Justice Jackson with a little history lesson. https: //t.co/6WgPoYmb6H”

— Mother Jones (@Mother Jones) 1664906984 

I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in — during the reconstructive — Reconstruction period were actually brought equal to everyone else in the society.

Jackson noted that she'd reviewed the work of the Reconstruction-era congressional commission that drafted the 14th Amendment, and that the report makes clear that "the entire point of the amendment was to secure rights of the freed former slaves." In fact, the legislator who introduced the amendment in Congress said that without it, the states of the former Confederacy "will all, I fear, keep up this discrimination and crush to death the hated freedmen."

You can't get much more originalist than that.

Jackson continued:

That's not — that's not a race-neutral or race-blind idea in terms of the remedy. And — and even more than that, I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That's the point of that Act, to make sure that the other citizens, the Black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

The addition of the 14th Amendment to the Constitution grew from the need to have a constitutional foundation for that 1866 civil rights law, Jackson explained, so the amendment was all about justifying a law that took race into account by making "people who had less opportunity and less rights equal to white citizens."

Similarly, Jackson said, "the plain text" of Section 2 of the Voting Rights Act "is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that's remedied, right?"

So with all that in mind, she asked, and since LaCour had acknowledged that Section 2 of the VRA is a "race-conscious effort," how can LaCour claim that it somehow violates the 14th Amendment?

This is where we all applaud Jackson, before the inevitable disappointment of LaCour's reply. He flatly insisted, again, that the 14th Amendment prohibits "discriminatory state action," but is "not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others." Hello, reverse discrimination bullshit again.

Jackson tried to corral him, pointing out again that you can't logically claim that an amendment and a law that explicitly set out to make minority citizens equal to the white majority should be neutral on matters of race, but LaCour kept insisting that previous Court precedents aren't sufficient to make Alabama "sacrifice our principles" in drawing voting maps, because you'd first have to prove that the maps are discriminatory — which, duh, is exactly what the appeals court had found.

For all her historical accuracy, and her sly use of "original intent" to support minority rights, it seems likely to most Court-watchers that the Supremes will rule in Alabama's favor, even if some of the Republican-appointed justices don't buy some of LaCour's more "sweeping" claims. They may even cite LaCour's baldly disingenuous claim, in his closing statement, that

the purpose of the Voting Rights Act is to prevent discrimination and to foster our transformation to a society that is no longer fixated on race, but plaintiffs would transform that statute into one that requires racial discrimination in districting and carries us further from the goal of a political system in which race no longer matters.

They might even save a few words and say they had to burn down the Voting Rights Act to save voting rights.

[ Merrill v. Milligan oral arguments transcript / NYT / SCOTUSblog / AL.com / Mother Jones ]

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