Justice Jackson makes her mark right out of the box
Ketanji Brown Jackson is making her mark already in just two days of questioning. Here’s Sherrilyn Ifill’s live tweet on today’s Alabama’s gerrymandering case that hopes to finally end the Voting Rights Act. This is very “legalesque” but you’ll get the idea. Jackson is using their originalism to prove they are full of shit:
So important that Justices Kagan & Jackson are pulling the mask off of Alabama’s case. AL is in essence, relitigating Mobile v. Bolden, which resulted in Congress amending the Voting Rights Act in 1982 to ensure that a “results” rather “intent” is required for section 2 cases.
And even better that Justice Kagan re-upped the language in Brnovich in which Justice Alito in his haste to remake the “totality of circumstances” test of Section 2, conceded that “no one disputes” that intent is NOT required to prevail in Section 2 cases.
Justice Jackson has done her homework. She is all over Section 2, and relentless in questioning counsel for the state of Alabama. She knows where a proper Section 2 inquiry starts. And it’s not at “race neutrality.”
Justice Alito throwing counsel for Alabama a lifeline.
Kagan and Jackson have been so hot, I’d forgotten that Justice Sotomayor is just entering the fray. This is a hot bench. And given the blows landed, I expect that Alito and the other 5 conservatives will be very aggressive with the counsel for Black voters.
Wow. Justice Kagan gets to it. Asks if it would be possible for Alabama to create maps with no majority Black districts. Counsel for AL essentially says, “it depends on what Section 2 is trying to get at.” Just unreal. The purpose of the Voting Rights Act is not mysterious.
Kagan now holding a class on the Voting Rights Act: “one of the great achievements of American democracy.”
Counsel for Alabama is now distorting what “third generation” voting rights claims means. This is not that. This is a classic second generation vote dilution redistricting claim. Good grief.
Justice Kavanaugh hoping this case can be resolved on “compactness” grounds. Looking for a way to get the job done without getting his hands dirty with the straight-on grotesque business of gutting Gingles.
Justice Barrett giving counsel for Alabama another chance by laying out the argument that can win with this conservative majority. Step-by-step. “Isn’t that your argument?” Well, yes.
Whew. Justice Jackson went into the reports of the Commission on Reconstruction to make clear what the founders of the 14th amendment were trying to accomplish. Then offered a short survey course to AL counsel and the Court.
Giving them a little “history and traditions.”
Not sure I can live tweet Deuel Ross’s argument cause I just think he’s amazing and I need to just listen.
Ross not falling into the “max-Black” bait being dangled by Justice Alito. So fully conversant on all of the cases and all of the facts that he can’t be caught. This line of questioning reveals that it’s hard to find a legitimate way out on the facts of this case.
Ross doing law and reminding the Court that this case is up in the SCOTUS on a preliminary injunction (suggesting the inappropriateness of using this case to make sweeping changes to precedent).
No questions for Ross from Justices Thomas or Gorsuch on this first round.
In responses to Justice Kavanaugh is leaning in. Trust me: there is no lawyer more knowledgeable about Voting Rights Act case law than @RossDeuel. Period. And he’s serving it up. If you want to do violence to the VRA with Ross at the podium, you’re going to have go through it.
I am alternately preening and fanning myself like a proud mother. Whew!
Up now Abha Khanna. Brilliant opening.
Excellent answers by Abha Khanna. And it shows how important it is to have a strong district court opinion where the Gingles analysis is done carefully and exhaustively.
Justice Alito is belaboring these hypotheticals involving the use of computer simulations, and “unbiased mapmakers.” It’s a reminder that at his confirmation hearing he talked abt his father’s work as a legislative mapmaker in New Jersey.
Abha Khanna now brilliantly breaking down how even computer simulations are not “neutral” because they are programmed with assumptions, in response to a question by Justice Barrett. It’s clear that several justices are really hanging their hats on computer simulated maps.
Justice Jackson making sure to ask Abha Khanna to address the assumption underlying Justice Barrett’s question – that either Section 2 or the 14th Amendment requires race neutrality. And making it clear that neither do.
Abha Khanna says there is “no basis” for reading a computer simulation standard into the first Gingles factor.
SG Elizabeth Prelogar now arguing.
Justice Alito gets to it: where can the state win once plaintiffs have satisfied the first Gingles factor? Won’t plaintiffs “run the tables”? Wow. Maybe, he says, the majority (whites) votes as a block because of “ideology. They have different ideas abt what the govt should do.”
Important to note that @RossDeuel made clear that the record evidence shows that voting was racially polarized in elections involving both Democrats and Republicans.
Counsel for Alabama on rebuttal now having seen where this is going, “we’re not asking for Gingles to be overturned or changed in any fundamental way. We’re not saying that computer simulations are required.”
Ok, counsel for Alabama saying that the multi-factor Gingles test only provides evidence of “broad, societal discrimination” is laughable. It is explicitly a “searching, practical evaluation of the local political reality.”
And that, is a wrap. The case is submitted.
Originally tweeted by Sherrilyn Ifill (@SIfill_) on October 4, 2022.
Josh Marshall talks a bit about today’s arguments:
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.
The 14th Amendment creates something called citizenship of the United States with various rights or “privileges and immunities” that states cannot violate. It reaffirms that states are subordinate jurisdictions and implicitly that their function had been far more to create mischief than progress.
This is all gauzed over today with the political and judicial edifice we call “federalism,” largely though not entirely the work of the late-20th century conservative legal movement. It proposes a set of principles and historical claims under which the federal and state governments are designed to exist in a kind of balancing equipoise. But mostly this isn’t true. “Federalism” is to a great degree the product of a long and mostly reactionary clawing back of the power by the state governments. Not entirely. But mostly.
Madison and Hamilton had wanted to neuter the states back in the 1780s. But the need to get a big majority of the states to agree to adopt the constitution made that impossible. They had to settle for the constitution as agreed to.
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.
He’s right about this. It’s super interesting to see originalism debated in this way. My previous post about the North Carolina Independent State Legislature case in which Michael Luttig uses the right’s originalism to argue against their new novel theory designed to allow Republicans to steal elections is also super interesting. This is the new intellectual battleground with this right wing majority. Whether any of them care abojut intellectual consistency or are all just partisan hacks remains to be seen.
And it’s very nice to see the three liberals on the court join the fray with all intellectual guns blazing. They’re all brilliant.