"... with its own distinctive political incentives, internal divisions and weaknesses.... To confront a hostile Supreme Court, the people and their elected leaders need to be confident that they, too, have the power and the obligation to interpret the Constitution.... To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution.... This term, this court will decide how far to go in shutting down both affirmative action and race-conscious protections for equal opportunity in the voting arena.... [T]he right-wing court has decided that these amendments prohibit race-conscious efforts to redistribute some political and economic power and opportunity to Black Americans. Progressives today should do more than argue that such efforts are something the Constitution permits. They should explain instead — as Justice Ketanji Brown Jackson did on her first day on the bench — that the Constitution here means just the opposite of what the Supreme Court majority says. Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands.... The rights this court denies and the laws it strikes down are often ones the Constitution demands...."
From "How Liberals Should Confront a Right-Wing Supreme Court" by lawprofs Joseph Fishkin and William E. Forbath in the NYT.
Presented for discussion, not in agreement, though I don't disagree with every word of it.
The reference to Justice Jackson is to the oral argument in Merrill v. Milligan (beginning at page 57 in the transcript):
JUSTICE JACKSON: 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. So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that "unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen." 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. And, importantly, when there was a concern that the Civil Rights Act wouldn't have a constitutional foundation, that's when the Fourteenth Amendment came into play. It was drafted to give a foundational -- a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens. So with that as the framing and the background, I'm trying to understand your position that Section 2, which by its plain text 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? It's a race-conscious effort, as you have indicated. I'm trying to understand why that violates the Fourteenth Amendment, given the history and -- and background of the Fourteenth Amendment?
MR. LACOUR: The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.
JUSTICE JACKSON: No, but as -- the record shows that the reason why the Fourteenth Amendment was enacted was to give a constitutional foundation for that kind of effort, for the Civil Rights Act of 1866, which was doing what the Section 2 is doing here.
MR. LACOUR: Right. Which --
JUSTICE JACKSON: Which said, by its terms, that other citizens have to be made equal to white citizens, and people were concerned that that didn't have a constitutional basis, so they enacted the Fourteenth Amendment.
पोस्ट्स
८७ टिप्पण्या:
"Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor..."
Or put differently: "Now that our formerly exclusive, and effectively used control methods have fallen into the 'wrong' hands, we advocate another method altogether to regain control."
Where there is obviously no race neutrality, and blacks are discriminated against in various ways, the law tries to achieve race neutrality. Where there have been good faith efforts to achieve race neutrality--even if there are differential impacts, there is no intent to harm any groups that can be identified by race--then whatever race neutrality has been achieved should not be discarded. Individual rights should not be overlooked or violated in order to achieve group goals. The votes of people who vote fair and square should not count for less than the votes of people whose votes are to some degree fraudulent.
It is a lot of blather to say they want the SCOTUS interpret the Constitution in a way that favors their political positions regardless of how it contradicts a clear understanding of the document.
What's new about this? That is how the Progressive Left view everything.
It also seems to be the way SCOTUS liberals have interpreted the Constitution for the last five decades.
"progressives must first convince enough Americans that the court is dead wrong about the Constitution"
Dead Wrong? Really.
I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right?
Well, yeah, the founders did not believe that race blindness was required, since they allowed slavery in the southern states. What that has to do with what legislators were trying to do 80+ years later is not explained.
Anybody can interpret the Constitution, but isn't the Supreme Court the only institution that has the "power" to make its interpretation the law? Doesn't the "Supreme" part mean that they can't be overruled by legislators or anyone else? If we're worried about protecting the Constitution from its enemies, protecting the judicial branch ought be part of that.
Lacour is correct and Jackson is wrong. The Fourteenth Amendment and even the Civil Rights Act of 1866 don't say anything about making equal to white citizens. It tells the states to *stop* making blacks *unequal*.
Plessy v. Ferguson results directly from reading the Fourteen as 'making people equal'. You can keep them 'seperate', as long as they are 'equal'.
Scott Johnson goes over the history at PowerLine in response to an article about Linda Brown, the daughter of the Brown in Brown v. Board
I remember as a first year law student thinking in my Con Law class about how the 14th Amendment could have been interpreted either (1) as dealing particularly with blacks vs whites or (2) more generally, more abstractly, as dealing with all races, and that the Court took route 2 rather than route 1. So I don't find Justice Jackson exploring these ideas to be crazy.
A new definition of "Uphold"?. Jazzy!
The Constitution requires keeping Asians out of universities.
lawmakers should view the court primarily as a hostile political actor
So, in other words, a check and balance.
Jackson, knowing she doesn't have the votes on the bench, has chosen to lecture from the bench.
This will become untenable with the rest of the court, even perhaps with Kagen.
The 14th Amendment is not about any legislation. Its purpose was to overrule the Dred Scott decision.
Meanwhile, Jackson has so monopolized oral arguments -- speaking 11,000 words in just eight arguments, compared to less than 6,000 for the next talkative justice -- that CJ Roberts was forced to send her a note during one argument telling her to shut her trap.
I think that the congress should have to declare what part of the constitution gives them the power to pass the law they are writing. The executive by signing will be in agreement with that basis. The DOJ should not then use another part of the constitution to justify it when challenged and the court should not use another part of the constitution to uphold it. However the court could use other parts of the constitution to overturn it.
The Supreme Court says what the law is. And five people are a majority in most cases.
WTF is this about? Libs have their own laws now? Their own Supreme Court? Will dissents now be the law of the land in NY, CA and other liberal states?
You libs lost. It's a new day. You have to accept your defeat. You don't have 5 votes any more.
The progs are not doing well right now in convincing people that they know best.
Hasn't the current Court encouraged such an approach with its gloss on stare decisis in Dobbs? There, the Court justified overturning Roe and Casey in part because those decisions did not end the debate over the right to abortion. To increase the likelihood that an adverse decision on any issue is eventually overturned, shouldn't legislatures that disagree with a ruling keep passing laws that raise the same issue, again and again?
I agree with the premise that all legislators - not just liberal ones - need to presume that the Supreme Court is a hostile actor. It is hostile in its defense of the Constitution, and laws that are counter to it will be struck down.
Justice Brown’s seems to read the 14th as a rule to give preference to Black people. Preference is the opposite of Equal Protection.
What I hear is, “Once more election consequences have proven unhelpful to progressives so we need to change rules and procedures to empower ourselves again.”
It is a bizarro world when "shall" becomes a suggestion or "the legislature thereof" includes the executive and the courts.
The Constitution was proposed as a politically-neutral framework in which political decision-making could take place without lurching the entire system out of whack. Liberal Supreme Court decisions/justices elevated "right" results over constitutional order and now it's very difficult even to talk about applying law without having it be (or perceived to be) nakedly political. Putting Humpty Dumpty back together again is going to be very difficult.
Insanity. Next they'll argue about the meaning of previous commonly understood words.
It all still boils down to equal opportunity vs equal outcomes. The left wants the Constitution to address historical wrongs, not because they believe in true equality, because if they did, they would give away all their assets to people who had less than the did until such time as their assets equaled the US median, but they don't. So instead they pander to the people on the short end of the stick telling them how they want to make their lives better. Just a different form of vote buying.
It is a difficult situation, but too tangled to effectively address with a national program. There are Blacks who don't need help, there are Asians who do, but if your program looks only at skin color, you create injustice that counters the very justice you seek to promulgate. Injustice in the name of justice is the worst kind.
If you want to really help the disadvantaged, base it entirely on life circumstances. Since more Blacks as a percentage then Whites are poor, it would address the real problem, but Harvard would rather more Baraks and Micheles than Travons or Georges. I understand Princeton can run entirely without tuition due to their large endowment. Maybe they should accept ONLY people who can't afford to pay. Same with many rich institutions. Maybe in a generation they can completely erase disparity.
Dave Begley said...
The Supreme Court says what the law is.
No, no, a thousand times no. Congress, with the approval or over the veto of the President, says what the law is*. They even write it down. The Supreme Court does not have the authority to add or remove a single jot or tiddle. All the have the power to do** is say how it applies to cases or controversies.
*Different procedures for constitutional amendments, but the same idea applies.
**They can declare a law unconstitutional, but that is essentially saying that in any case or controversy that involves the law, the law will be overruled by the Constitution, so don't waste our time with it.
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.... Which said, by its terms, that other citizens have to be "made equal" to white citizens, and people were concerned that that didn't have a constitutional basis, so they enacted the Fourteenth Amendment.
She uses the rhetorical trick of recognizing that the Civil Rights Act was intended to provide equality of civil rights but then moving to black people having the "same" generally, not limited to civil rights, and that they be made "equal." That is not the language of the Civil Rights Act, of the legislator who introduced the Act (not that he/she alone should have some interpretive privilege over the rest of the legislators or the courts), nor is it that of the amendments she cites.
"Civil Rights" is defined in the Oxford Dictionary as "the rights of citizens to political and social freedom and equality." It is not defined as rights of any kind to job or admissions preferences - else the term "equality" would not be in the definition.
Blacks are the children that the left never had> The Constitution requires that they be infantalized.
The idiot libtards need to focus on the house and the Senate and running someone for Prez that doesn't appear to be slimed by the corrupt stench of the DNC and isn't one TIA away from becoming a cauliflower.
They lost the court. Time to moveon.org and deal with reality. The fact of the matter is they must know this yet they are so entrenched in their economic trough of corruption that dare not give it up.
Not that arguing with progs makes such difference, but:
"Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands"
if the Constitution demands it, why its the Act necessary? If the Act was necessary in the 1960s, why is it necessary today? If the Court has been "gutting" the VRA, why doesn't Congress rewrite it--specifically with evidence showing that targeting some states but not others is necessary now?
"the people and their elected leaders need to be confident that they, too, have the power and the obligation to interpret the Constitution"
Right. Starting with the obligation to abide by the actual Commerce Clause as dealing with, you know, commerce. This could be fun.
But of course, arguments about con law are a con in some sense, since the actual system today has little to do with the document itself.
Shorter version of the article: progs want what they want and they will do anything to get what they want, Constitution and SCOTUS and procedures be damned. For which they need power and more power, is all.
The concept of legislation that treats different races under different rules of law fails when faced with mixed race children. The concept also fails when assigning priority to one group over another based solely on skin color. The concept also fails when persons lie about what race they are, to obtain personal benefits. I am sure anyone reading this can imagine many other situations in which group identity by racial classification fails any logical application.
The only way for government to treat all citizens fairly is for government to treat all citizens as individuals with equal rights under law.
That this destroys the collectivist fetishism of the Left is a happy by-product of this logical necessity.
"liberal lawmakers should view the court primarily as a hostile political actor..."
Or maybe they should view the court as part of the system of checks and balances, and if Congress oversteps the Constitution, the court is within its rights to check them.
The progs haven't thought their point through. If Congress and the President can do as they state so can a Republican Congress and President.
I think the first commenter, Quayle, nailed this. As long as SCOTUS was a reliably left-leaning institution, its decisions were indisputable and sacred. Now that the court is tilted the other way, it's just a political organ not entitled to any special respect or deference. Leftist institutions: feel free to defy SCOTUS rulings at will.
The Constitution gave the rights to manage election to the states. There is no demand from the Constitution for federal control over elections in general. The specific parts regarding elections at the federal level are clearly and narrowly defined.
I disagree that it is the other branches role to interpret legislation. But it is there job to write it and make it clearer. When they make arbitrary or conflicting legislation, the Supreme Court is there to interpret until the legislation can be fixed. “Roe” was a bad interpretation that the legislature never cleaned up. The solution is to write better legislation.
Claiming the Supreme Court is a hostile actor seems insurrectionist to me.
It's quite a short hop from this to individual states setting up border controls to keep the federal government out.
They need to think this through.
It's Amazing, during ALL THOSE YEARS when a majority of the court were liberal (appointed by republican presidents, but only through a filibuster), that those liberal judges NEVER tried to slip anything through the way the EVIL court is doing now.
Think of the things we could have gotten
pornography
birth control
abortions!
legalized sodomy
same sex marriages
treating mandatory insurance as a "tax"
Ignorance is Bliss:
“It is emphatically the province and duty of the Judicial Department to say what the law is.”
— Marbury, 5 U.S. at 177.[
KBJ has no business being on the Supreme Court. The election was rigged. And KBJ couldn’t even define what a woman is. That’s her legacy.
Law professors proclaiming....."the Supreme Court is a hostile actor seems insurrectionist to me."
Battle lines being drawn.....
Just finished the book, The original meaning of the 14th Amendment by Randy Barnett and Evan Bernice. Nowhere in 465 pp is Justice Jackson’s idea to be found among the statements of the drafters.
And this by Bernstein in todays Volokh Conspiracy. https://reason.com/volokh/2022/10/17/on-the-originalist-case-that-racial-preferences-by-government-are-constitutional/
There was a life-tolerant, if not life-affirming, precedent before inference of the Twilight Amendment to the Constitution. The [conservative] centrists do not approve elective abortion, and the libertarian right is... well, libertarian, among the several states any more than they approved slavery, diversity [dogma], redistributive change, and [catastrophic] [anthropogenic] immigration reform. That said, social progressives will always have murder (i.e. elective abortion in darkness), in dark alleys, in closeted clinics, in abortion chambers, if they can get away with it.
Slavery was not motivated by diversity [dogma], but rather as cheap exports from African tribes and nations, Islamic empires, and fitness to purpose in hot climates. The original tolerance was a compromise as Americans faced wars and conflicts of survival with indigenous, European, and domestic parties.
To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution
It is truly amazing to watch progressives pivot from "the Court has decided, the issue is settled" to "we need to curb the Court, the Court is dead wrong about the Constitution". Welcome to the party. I don't begrudge progressives the freedom to think the Court is dead wrong about the Constitution, but it's fascinating to watch people disagree with the very institution whose opinion on the Constitution carries the most authority.
.
The narrative is set. Every utterance of KBJ will be treated as if it came from the mouth of God. We're going to get decades of this tedium.
So the Court is a "hostile political actor" because, for example, abortion is a delineated or readily inferred right guaranteed by the Constitution and Roe was a finely reasoned opinion well within the scope of the Court's mandate?
This is the kind of bullshit we can expect from media pandering law profs. It is why lawyering is such an honorable profession nowadays. /s
They may speak about race, but it's about abortion - always.
If they don't like the current Supreme Court lineup, I suspect that they are REALLY not going to like the new Congress that convenes in January. It's quite likely that they have already wasted any opportunity at new legislation outside of the lame duck session after the election.
My, admittedly limited, knowledge of the Alabama case is based on using redistricting to virtually assure equal representation between white and black representatives.
Now take the plaintive'/Justice Jackson's side and apply it to (e.g.) the LA City Council, also in the news this week. LA has a LOT more Hispanic than black citizens. But the council reflects the opposite. How happy would the left be when districts are pretzeled into proportional "safe" districts in those type case?
Our host was a constitutional law professor. I'd be curious to hear her views.
Yikes. The SC gets no respect. 😔
"Insanity. Next they'll argue about the meaning of previous commonly understood words".
Exactly. Exhibit A: 'woman'
Looks as if nullification is back on the menu. Thanks, law profs!
Since Progressives are upset about abortion and affirmative action, why don't we give Black people the sole right to abortion on demand?
To make them even happier, we can include the word "reparations" in the title of the law.
For generations, the left has been happy to win in court what they couldn't win at the ballot box. Now that they're not winning in court as much as they used to, suddenly winning in court is undemocratic.
Typical.
"The rights this court denies and the laws it strikes down are often ones the Constitution demands ...."
Yeah, right. The Constitution is not only living and breathing, it is now demanding. Tendentious twaddle.
I'd be curious to hear her views.
Good news, you can start from the beginning.
Funny how they were unwilling to grant the third pillar of government the right to have his own interpretation of the constitution, in this case the role of the president of the Senate in elections.
Sauce fir the goose is sauce for the gander.
“ Our host was a constitutional law professor. I'd be curious to hear her views.”
Thanks. I wasn’t in the mood. I’ll add my court-packing tag so you can get to things I’ve already said.
I think if Biden was gonna pick a black female for SC he should have chosen senate candidate in NC or Clyburn's choice. Not sure who is harder to look at KJ or Kagan. KJ is the most radical of the 9.
Every utterance of KBJ will be treated as if it came from the mouth of God. We're going to get decades of this tedium.
I don't know. There doesn't seem to be any particular aura of awe around Sotomayor, regardless of how she was billed. I'm going to wait it out a bit.
Dave Begley said...
— Marbury, 5 U.S. at 177.
Thanks for pointing out exactly where that power-grabbing piece of misinformation came from.
The Supreme Court has the authority to say what the law says because the Supreme Court says it has the authority to say what the law says in spite of the fact that the Constitution clearly gives that power to Congress.
These professors are playing with dynamite here. They suggest restricting the Court's jurisdiction, so that it simply won't be allowed to judge certain questions at all. (Laurence Tribe, in a sane earlier life, correctly saw the minefield this would open up.) And then they get yet more creative:
Congress can delay jurisdiction, giving laws time to work — and become popular — before review is ripe. It can create politically unpalatable choices for the court through backup provisions that take effect if a law is struck down.
Um, so you just hold off the Court until the law in question is "popular," at which time the issue will be "ripe"? What if that never happens? California (freakin' California!) has explicitly rejected affirmative action in public university admissions twice, despite being massively outspent by the "pro" forces (I think by about 20:1, last time). And they weren't dealing with the explicit anti-Asian-American discrimination that the Harvard/UNC case will be. As for "poison pills" in legislation, I have no idea how that would work in a judicial context, but the very idea is unsavory. It's a transparent attempt to prevent the Court ruling as the people, from all accounts, would prefer it to. Bleh.
Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands
That's a good fundraising line but don't you need to get more "granular"? If the Constitution is "living" and changes with time is what was regarded as necessary almost 50 years ago still necessary today? Maybe it's best, though, to leave the changes up to Congress, not the courts.
JAORE,
The Alabama case is about "majority-minority" districts. The idea is that (in the South, at least):
(1) Blacks will vote for Black representatives whenever they get the chance; and
(2) Whites won't vote for Blacks under any circumstances.
Therefore, the "right" thing to do is to cram Blacks into as many districts as possible where they are the numerical majority. That way you get more Black representatives. (You also get safer white seats, of course, as the making of majority-minority districts inevitably "blanches" the surrounding ones. Indeed, a frequent outcome is that the "majority-minority" districts are reliably Democratic, but everywhere else is more thoroughly Republican. You can therefore reduce the Dems' share of seats this way. But . . . the seats you do get will probably be Black.)
This is kind of amusing, up there with the (slightly more plausible, but in the end very wrong) piece by Mark Tushnet in 2016 urging progressives to abandon "defensive crouch liberalism," purge Republicans as the Allies purged Nazis, and "f*** Anthony Kennedy." These guys have no hope of doing any of the grandiose things they are proposing: they like to talk big to compensate for the triviality of their existence and the powerlessness of their jobs.
Seems like it’s time to take the keys away from the Democrat kids and make them ride in the back seat. Seems like the chickens have come home to roost. Giving power to Democrats is like giving booze and a fast car to 16 year olds.
The poor democrats, having no enemies to the left, become an orgy of every ludicrous social fad and every moral panic. This continues until reality responds to policy, and a moderate political cycle ensues. In truth, this would have happened even without Trump, but his presidency created a shock to the government that made the transition less painful.
When you have a good job and cheap food you go looking for wrongs to right. When your rice bowl is broken, you fondly remember how intelligent policy works.
The court is no longer the Notorious Ginsberg Jesus Machine.
I'm pushing 80, and for most of my adult life the Supremes have supported liberal causes more than conservative ones. By a political freak, all of a sudden there are 5 1/2 + conservative votes on the Court, and folks want to change the Constitution? Do you want judicial review or not? Not: Do you want judicial review by liberal justices, Or do you want judiscial review by conservative justices? If you answer either question Yes, your real answer is NO.
To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution
Well, since the left is dead wrong about the US Constitution, and the current SCOTUS is much closer to being right, and obviously so, that's going to be an impossible task
This term, this court will decide how far to go in shutting down both affirmative action and race-conscious protections for equal opportunity in the voting arena.... [T]he right-wing court has decided that these amendments prohibit race-conscious efforts to redistribute some political and economic power and opportunity to Black Americans.
SCOUTS should decide that it's wrong to discriminate people based on the color of their skin, no matter what color it is
Because that's what that 14th Amendment says
They should explain instead — as Justice Ketanji Brown Jackson did on her first day on the bench — that the Constitution here means just the opposite of what the Supreme Court majority says. Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands.... The rights this court denies and the laws it strikes down are often ones the Constitution demands
So, "the right of the people to keep and bear arms shall not be infringed" means that "States can infringe the right to keep and bear arms whenever lawmakers think it's justified"?
Abortion really is in there, somewhere?
But my favorite is the "reverse Plessy" from KJB. Let's start with what the 14th says:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I'm missing the "but you can discriminate against white people and Asians to help black people and hispanics" part.
Oh, that's right, it only helps ex-slaves, so that means that pro-black racism's ok, but racism supporting any other "race" is not, right KJB?
Oh, but there are no people left alive who were legally slaves in the US.
So I guess that "but we have to discriminate for slaves" part is gone, right?
In any event, Barack Obama, none of whose ancestors were slaves int eh US, can not get any 14th Amendment help, right? How about all other "blacks" who didn't descend from US slaves?
What about blacks who descend from US slave owners? Does the 14th Amendment order the giving of "help" to the children of slave owners?
It's amazing how septic you have to be to pretend to believe what the Left claims to believe
Michelle Dulak Thomson said...
The Alabama case is about "majority-minority" districts. The idea is that (in the South, at least):
(1) Blacks will vote for Black representatives whenever they get the chance; and
(2) Whites won't vote for Blacks under any circumstances.
Well, the issue was that white Democrats refuse to vote for black people, and that therefore they should be forced to spread the Democrat seats among the black voters as wells the white ones.
But the current situation is that sane Republicans won't vote for Democrats, no matter what their skin color
And in that case, so long as MA can have a population that votes GOP 30+%, but has no GOP house members, then there's no reason why AL should have any Democrat House members, of any skin color
Speaking of Justice Jackson speaking:
OK, that's funny
The Alabama case is about "majority-minority" districts. The idea is that (in the South, at least):
(1) Blacks will vote for Black representatives whenever they get the chance; and
(2) Whites won't vote for Blacks under any circumstances.
Every Black Democrat in Congress was elected from a majority Black district. Every Black Republican in Congress was elected from a majority White district.
After November the Dems will be in no position to do anything whatsoever about the composition of the Supreme Court, a political banishment to the congressional minority in both houses by the voters that will likely endure for a long while. So they can dream, but that's it.
I find it fascinating that the very comments she is being lauded for are precisely the ignorant nonsense that ought to have disqualified her from the Court in the first place.
If the Court is to be guided by popular opinion, as the Democratic law professors seem to be arguing, then affirmative action should be outlawed since the public strongly opposes it. This is shown in every poll on the subject, and it's true across racial and ethnic lines. Even in California, two state-wide referenda resulted in the public voting to outlaw affirmative action in college admissions, notwithstanding overwhelming, well-funded support for AA from pretty much all elite leaders across business, movies, law, media, sports, etc. Or is that the kind of case where the Court should ignore public sentiment? It's so confusing.
cubanbob said...
The progs haven't thought their point through. If Congress and the President can do as they state so can a Republican Congress and President.
10/17/22, 4:50 PM
As Leland says @ 10/17/22, 5:01 PM
Claiming the Supreme Court is a hostile actor seems insurrectionist to me.
cubanbob said...
The progs haven't thought their point through. If Congress and the President can do as they state so can a Republican Congress and President.
10/17/22, 4:50 PM
As Leland says @ 10/17/22, 5:01 PM
Claiming the Supreme Court is a hostile actor seems insurrectionist to me.
These progressives could test their explicitly racially discriminatory ideas in the crucible of politics by actually proposing and getting ratified an explicit constitutional amendment that reflects what they think the Constitution ought to say in this matter.
I wonder why they don't?
Could it be that it's far easier to persuade five of their fellow travelers on the court than it is to persuade 2/3 of Congress and 3/4 of the state legislatures?
Blair said...
I find it fascinating that the very comments she is being lauded for are precisely the ignorant nonsense that ought to have disqualified her from the Court in the first place.
10/18/22, 12:25 AM
I think her "I'm not a biologist" response should have done that.
Many Whites won’t vote for Black Dems, because they tend to be the most extreme Dems. They will happily vote for Black Republicans.
It’s politics and policy not race, except where race is seen as a signaler of politics/policy.
Can't figure what a woman is, but an expert on everything else.
Does this way of thinking make the Left Supreme Court deniers, or just Constitution deniers?
Where Jacksons argument touch on district mapping we could draw squares on maps big enough or small enough to fit the desired population count regardless of demographic content. It would delightfully piss of everbody for its blind fairness.
To be fair, the Judicial Branch and the Legislative Branch, not to mention the Executive Branch, are supposed to be hostile to each other. They are all supposed to be jealous of their powers and slap down any attempts by one of the other branches to usurp any of them. That's part of the problem we have now. The Legislative Branch has been surrendering more and more of its power either to the Executive Branch, by enabling unelected bureaucracies to make rules that are effectively laws, or the Judicial Branch, letting the Supreme Court make extremely important decisions that it does not want to vote upon because voters might get upset. The cowardice of Congress has essentially established the Bureaucratic Branch of government, which currently does its best to ignore all the others. To whom the Bureaucracy answers is an open question, but it certainly is not the voters.
All that said, Quayle's comment at the start nails it.
The Thaddeus Stevens 14th Amendment intro speech Jackson quoted from:
I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which, operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of their skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination and crush to death the hated freedmen.
The amendment says what Congress and states cannot do ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") Can't abridge, deprive or deny. Congress can pass legislation (like the Civil Rights Act of 1866) to enforce these prohibitions. Nothing in there to support Jackson's point.
"progressives must first convince enough Americans that the court is dead wrong about the Constitution" Good luck. You certainly didn't care till now. You got what you wanted, that was all that mattered.
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