Justice Jackson, doing the job she was hired to do
And using plenty of words to do it
This Washington Post puff piece about Justice Ketanji Brown Jackson lauds her for “making her voice heard” on the Supreme Court. The Post has the facts to support this statement.
According to an analysis it cites, Justice Jackson uttered more than 11,000 words during the Court’s first eight oral arguments, nearly double the number by the runner-up Justice. Jackson’s words accounted for 24 percent of all those spoken by the nine Justices.
The runner-up, by the way, was Justice Sotomayor. This confirms that talking a lot doesn’t make one a giant of the Court.
One of Jackson’s former law clerks told the Post that the new Justice “is asking the parties to give her the information she needs to make an informed decision.” This may be true in some cases. However, it was not true during portions of the oral argument in Merrill v. Milligan, the one argument I listened to from start to finish.
This is the case challenging Alabama’s redistricting plan as violating the Voting Rights Act. During oral argument, Jackson delivered a speech in which she argued that the Framers of the Fourteenth Amendment adopted it “in a race conscious way” because they were “trying to ensure that people who had been discriminated against, the freedmen. . .were actually brought equal to everyone else in the society.” (See pages 57-58 of the transcript.) She added that the Fourteenth Amendment doesn’t embody “a race-neutral or race-blind idea in terms of the remedy” for the “freedmen.” (See page 58.)
Whatever one thinks of this argument (see below for my view), this is not the questioning of someone trying to obtain information needed to make an informed decision. This is the speech of someone who has already decided the case and is trying to make an impression.
Jackson’s speech stands in contrast to the questioning of others on the Court. Justice Alito asked hypothetical questions, a time-honored way of understanding the positions of the parties and the implications of those positions. Justice Barrett asked lawyers to clarify their positions. Justice Kavanaugh asked the lawyer defending Alabama’s redistricting to address a point that seemed to be troubling him.
It may be that one or more of these Justices already knew how he/she would decide the case. But they were acting as jurists, not advocates. At times, Jackson was merely spouting one side’s (and one ideology’s) talking points.
In other words, Jackson was doing the job she was hired by Joe Biden, at the insistence of the left, to do — be an advocate posing as a judge, at least in cases involving hot-button issues such as race.
As for the merits of her advocacy, I agree with Ed Whelan:
The usual suspects are going gaga over Justice Jackson’s remarks. But neither they nor she appear to understand the position they think they are contesting.
Certainly, the Fourteenth Amendment was adopted in a race-conscious way in the sense that its central purpose was to ensure that freed slaves received equal treatment under the law. The Amendment speaks explicitly of things that shall not be done to citizens — e.g. abridgement of privileges or immunities — “irrespective of the person’s race.”
But it hardly follows that the Fourteenth Amendment permits preferential treatment for blacks. Indeed, the plain meaning of the Amendment’s words would seem to ban such treatment.
Jackson, though, attacked color-blindness in the context of remedies for discrimination. And if the legislature is remedying specifics wrongs against members of a particular race, the Constitution is not violated if the benefits of the remedy accrue largely or exclusively to certain members of that race, i.e., the victims.
For example, Congress passed legislation that conferred benefits on blacks when it passed the Freedmen’s Bureau Acts. But, as Ed Whelan points out (per Michael Rappaport), the benefits of these Acts were provided not on the basis of race but on the basis of the oppression and hardship victims were enduring due to past wrongs. In fact, as Rappaport shows, provisions of the second of these Acts call for colorblind administration.
Congress provided benefits to members of a particular race when it authorized cash payments to victims of the internment of Japanese-Americans during World War II. But again, these benefits were conferred not on the basis of race but on the basis of having personally been been wronged.
Jackson played it fast and loose when she spoke of the Fourteenth Amendment “trying to ensure that people who had been discriminated against, the freedmen. . .were actually brought equal to everyone else in the society.” If she means “equal to everyone else in the society” in the sense of having equal protection under the law then, of course, she is right. If she means equal to everyone else in any broader sense, she is mistaken.
Jackson was equally sloppy when she said (at page 59):
They [the authors of the Fourteenth Amendment] 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.
“The same civil rights,” yes. “The same” in any broader sense, no.
To be fair, Jackson had a heavy lift. It’s not easy to get from a constitutional amendment that says “irrespective of race” to a race-conscious constitution that permits racial preferences. Nor is it easy to infer from a Civil Rights Act that grants to all citizens “the same right. . .to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens,” that the Congress that passed it favored preferential treatment for blacks.
Justice Jackson’s speech in Merrill v. Mulligan can reasonably be viewed as a dress rehearsal for the oral argument in the Harvard and University of North Carolina cases brought by Students for Fair Admissions. They will be argued at the end of the month. Because she was a member of Harvard’s board of overseers (I’m surprised Harvard still calls it that), Jackson will participate only in the UNC argument.
Don’t be surprised if Jackson’s word output in that one case exceeds the output of any two Justices combined in both matters. Don’t be surprised if the Washington Post and other left-liberal organs gush over her performance.
Don’t be surprised if the Court, however it decides the case, rejects Jackson’s view of the Fourteenth Amendment. It has good reason to.
Re Jfans' comment, you may be right about the scope of the 14th Amendment standing alone, but it seems to me the Fifteenth Amendment, which sets forth clearly the voting rights protected by the Constitution, provides the sole basis for determining voting rights based on race, since, as a latter amendment, it trumps anything to the contrary in the 14th Amendment. In any event, it's clear that both the 14th and 15th Amendments protect all persons and races equally, including white persons and the white race. Jim Dueholm
In claiming the 14th Amendment was enacted for the protection of minority groups or for Blacks freed by the 13th Amendment, or that the 14th Amendment conferred a right to vote, Justice Jackson ignores the words of the 14th Amendment and a large body of Supreme Court cases.
The 14th Amendment by its terms extends its protection to all persons, without limitation. It has been construed by a number of cases to protect corporations, as the Supreme Court did in invoking the 14th Amendment to protect the New York Times from libel claims. The Supreme Court has said that the Amendment extends almost all of the Bill of Rights to all persons without limitation of race or color. There is no favor shown by these cases to any race or group of persons.
It gets worse. Justice Jackson made her extended comments in a voting rights case, and the Supreme Court held in Minor v. Happersett that the 14th Amendment does not confer a right to vote. As the Court in that case noted, there would have been no need for the 15th Amendment, which does confer a right to vote, if that had been done by the 14th Amendment. Similarly, there would have been no need for the 19th Amendment, giving women the right to vote, if that had been done by the 14th Amendment. It's true the 14th Amendment gives Congress power to enforce the Amendment, and Congress in the Voting Rights Act purports to exercise congressional power under the 14th Amendment, but power to enforce is not power to construe.
So the only real basis for voting protection is the 15th Amendment, which says the right to vote can't be denied on the basis of "race, color, or previous condition of servitude." If this Amendment was designed solely for the protection of the Blacks freed by the 13th Amendment, as Justice Jackson suggests, the protection for race and color were unnecessary. If it was designed solely for the protection of minority groups, the protection of race would be unnecessary, for color and previous condition of servitude would cover the waterfront. Ergo, the protection of race covers the white race.
Justice Jackson's maiden voyage hit a lot of shoals.
Jim Dueholm