With precision and confidence, Justice Jackson takes the bench
Say It Louder
On Monday morning, Justice Ketanji Brown Jackson participated in her first oral argument after joining the Supreme Court on June 30. There is no “easy first case” at the high court, but hers was particularly technical: Monday’s case, Sackett v. EPA, seeks to hobble federal protection of wetlands under the Clean Water Act. She came loaded for bear. With precision and confidence, Jackson punctured legal theories designed to let landowners destroy crucial wetlands on their property. She will probably still wind up in dissent. But she is ready to go down swinging.
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Progressive originalism comes to the Supreme Court
More of This
In her first oral arguments as a justice of the U.S. Supreme Court, Ketanji Brown Jackson offered a history lesson to the solicitor general of Alabama. While presenting arguments in Merrill v. Milligan on Tuesday, Edmund LaCour had the temerity to say that the 14th Amendment’s guarantee of equal protection under the law prohibited his state from considering racial justice when designing congressional districts as required by the Voting Rights Act of 1965. Far from providing for “color blindness” in the operations of government, Jackson countered, the members of Congress who wrote the 14th Amendment were adamant about the need for race-conscious remedies for past discrimination. As Talking Points Memo reported:
“I don’t think we can assume that, just because race is taken into account, that that necessarily creates an equal protection problem,” she said. “Because I understood that we looked at the history and traditions of the Constitution and what the framers and 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 14th Amendment, the 15th Amendment in a race-conscious way.”
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How progressives can take back the Constitution
Speaking Of...
With the catastrophic recent term of the Supreme Court finally concluded, it can no longer be denied that the judiciary is firmly under the thumb of the conservative movement. In discussions of how the conservatives accomplished this feat, we often hear about the organizing acumen of the Federalist Society, or the vast financial resources of the Kochs, the Olins, and the Scaifes. But one critical ingredient has been largely overlooked, something the conservative movement has but its progressive counterpart does not: a compelling constitutional ideology.
This constitutional ideology—of which “originalism” is the most well-known offshoot—is an intellectual tool used by conservative judges to translate the political goals of the Republican Party into the language of judicial opinion. Law and politics are supposed to be different, so a judicial opinion cannot sound like a stump speech. Conservative constitutional ideology bridges the gap, translating Republican stump speeches into the supposedly apolitical language of jurisprudence, and supplying conservative judges with the rhetorical tropes and legal concepts they need to issue political decisions while maintaining a facade of legal reasoning.
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The conservative legal movement vs. democracy
Less of This
The anti-abortion movement has long loved to profess its love for democracy. Clarke Forsythe of Americans United for Life consistently called on the Supreme Court to reverse Roe v. Wade and put questions about abortion “back into voters’ hands—where they belong.” The National Catholic Register proclaimed the day Roe was overturned “a wonderful day for democracy.”
But now democracy may not look so hot to anti-abortion activists: In the months since Roe was overturned, voters in Kansas, a deeply conservative state, decisively rejected a proposal to undo state constitutional abortion rights, and many expect the result to be the same when voters confront ballot initiatives in key states such as Michigan. Fueled by rage about the reversal of abortion rights, Democrats have nearly eliminated Republicans’ advantage in voter registration and have turned what appeared to be a landslide loss in the 2022 midterms into a potential nail-biter. In many red states, politicians scared of a backlash are backpedaling on total abortion bans, while Senate candidates such as Blake Masters are busy scrubbing their websites and changing their positions on issues like fetal personhood laws, which would allow abortion to be prosecuted as murder. The anti-abortion movement faces a question: How does it feel about democracy now?
Read the story on The Atlantic
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