Even before the latest addition, it was clear to many honest observers that proper history will record a very unimpressive picture of the Obama-Biden wing of The Court. Given the transparently shallow selection criteria that went into their nominations, that should surprise no one. If there was any doubt about Biden’s first selection fitting in, the rookie did not disappoint:
In today’s oral argument in Merrill v. Milligan, Justice Jackson … states that the Framers of the 14th Amendment adopted it “in a race conscious way,” as they were “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.” As she puts it, the Civil Rights Act of 1866 “specifically stated that citizens would have the same civil rights as enjoyed by white citizens,” and the Fourteenth Amendment was designed to ensure that the Act had a solid “constitutional foundation.”
Somehow Jackson leaps from these propositions to the assertion that the 14th Amendment doesn’t embody “a race-neutral or race-blind idea in terms of the remedy” for discrimination against freed slaves. …
The proposition that the 14th Amendment requires that the government be color-blind is open to challenge both as to what exactly that means and to whether that meaning is well founded. But Jackson seems to think that the color-blind position is somehow at odds with the fact that the 14th Amendment was designed to ensure equal treatment—when that of course is exactly what advocates of the color-blind position maintain the 14th Amendment requires.
Insofar as Jackson might be arguing that the 14th Amendment allows race-conscious remedies, she doesn’t touch on the critical questions of what counts as a race-conscious remedy and when such a remedy is permissible. Some scholars cite the Freedmen’s Bureau Acts as evidence that the Equal Protection Clause does not require colorblindness. But as law professor Michael Rappaport points out in “Originalism and the Colorblind Constitution,” even apart from the question whether those Acts inform the meaning of the 14th Amendment, they gave benefits to freedmen and refugees (most of whom were white) not on the basis of race but on the basis of the oppression and hardship they were enduring. Further, Justice Scalia and Justice Thomas—leading proponents of colorblindness—agree that states can act to provide benefits to blacks (or persons of other races and ethnicities) when they have been victims of discrimination.
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.
Speaking of the usual suspects…let’s check in with a once-fake-conservative-now-just-another-boring-progressive-blowhard:
…during Monday’s oral arguments in Merrill v Milligan, Justice Jackson demonstrated that she misapprehends history and has trouble understanding simple words. During her confirmation, she did not know what a woman was. Equally, her reading of the word “citizen”, as found in the 14th and 15th Amendments seems to not match our common understanding.
By doing so, she’s invented a new form of textualism and originalism that is at odds with close to 150 years of precedence and logic. …
Wait for it…
… On Thursday, faithful leftist Toadie, Jennifer Rubin of the Washington Post authored a screechy op-ed in which Rubin claims Jackson established herself as a “potent intellectual force”, and the woman who single-handedly “blew up” the arguments of “right-wing” Justices hearing the Merrill case.
Jackson did neither.
It doesn’t take much to show what a dolt this Rubin really is…but please do read the whole smackdown at the link. Another teaser:
Rubin goes on:
“Republicans have been telling themselves a useful fiction, namely that racism has vanished, and any attempt to teach about the enduring effects or to remedy enduring discrimination is unfair to White people and is unconstitutional.”
I don’t know a single Republican who has ever made these arguments. Ever.
Rubin isn’t smart enough to make her own legal arguments so she quotes two “experts”: Slate’s Mark Stern and election “guru” Rick Hansen. Both experts are, for the most part, wrong.
As always, more and more are becoming aware of the narrative cultivating machine so the effort to paint this as seen in Rubin’s alternate universe will not be as easy as it once was:
Media lackeys like Rubin will praise Jackson’s dissent, and her new progressive constitutional “originalism” while condemning actual originalism.
Wash. Rinse. Repeat.
Regardless of the near term success of those pushing the narrative (and assuming Idiocracy doesn’t come true), the written (and oral) legacy of the Obama-Biden wing of The Court promises to provide loads of sideshow comedy to future generations of students of American legal history while on breaks from more serious studies.