Not SCOTUS jurisprudence
Justice Ketanji Brown Jackson heard her first oral arguments before the Supreme Court on Tuesday. Merrill v. Milligan, a key voting rights case this session, arises from a “packing and cracking” challenge to Alabama’s redrawn congressional districts. Over a quarter of Alabamians are black. Yet legislators packed them into a single black-majority congressional distict of the state’s seven.
Jackson and the other two liberal women may have little power on the conservative court, but they mean to make noise about it, explain Dahlia Lithwick and Mark Joseph Stern for Slate:
All three of Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson brought the full force of history, text, original intent, and statutory purpose to the table during arguments about the enforcement of the Voting Rights Act—values the court’s conservatives purport to espouse. In so doing, they highlighted that the state of Alabama, aided and abetted by the court’s so-called textualists and originalists, are engaged in a radical project to engineer a new era of “race blindness” in voting that violates both the Constitution and the Voting Rights Act.
What conservatives mean to do is kill the Voting Rights Act by a thousand cuts, Justice Elena Kagan argued. The court excised Section 5 in Shelby County, promising Section would stand against voting rights violations. The in Brnovich v. DNC, the court assured the country that Section 2 would still provide protection the dilution of the votes of racial minorities. Now Alabama asks the court to eviscerate Section 2. Merrill could be the coup de grâce.
“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?” Kagan told Alabama’s solicitor general, Edmund LaCour, Jr., who contends that redistricting must be done on a race-neutral basis.
Kagan also said that under existing precedents, Alabama could only prevail if the court ignored or overruled existing law. Of course, ignoring and overruling existing law is the raison d’etre for the new conservative supermajority, for which precedent is a mere annoyance on the way to its final destination.
Up next was Jackson, who cogently explained that the Alabama legislature’s claim in Merrill is itself rooted in a lie. The 14th Amendment and the Voting Rights Act both explicitly provide for race conscious measures to remediate historic efforts to suppress Black voters. It is not a race blind project and it never was; it wasn’t even intended to be. It is race-conscious on its own terms, and Jackson read from the contemporaneous reports at the drafting to make that very point.
Conservative justices might choose to ignore or distort history to disenfranchise minority voters, but not without the first black woman on the court highlighing “the absurdity of their anti-originalist convictions in a manner that’s perfectly legible to the public.” Jackson means to pull back their black robes to reveal what’s underneath.
Lithwick and Stern conclude:
Nothing about this looks like color blindness, or like post-racial America, or like neutral, color-blind computer-generated maps. It looks like the vestiges of white supremacy, elevated to a lofty principle of “color blindness” that itself smacks of white supremacy, as three women, two of whom are women of color, call it precisely that. In the midst of a raucous national referendum on the continued legitimacy of the court, perhaps the most important development is that the justices are letting us listen in to these conversations, in real time. The three liberal justices surely already know they will be dissenting for the foreseeable future. They’re focusing on using their voices. We should listen.
God help us when the conservatives get their hands on Moore v. Harper.
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