On Justice Ketanji Brown Jackson’s first day on the Supreme Court, several news outlets took to counting the number of times she spoke, which according to ABC News was at least 21 times during her first day on Monday. A far better use of time might be to center what Jackson actually said when she spoke. The first Black woman to sit on the highest court of the land, Jackson weighed in on two essential cases regarding the reach of federal control over wetlands and whether a newly drawn state congressional map violated the voting rights of Alabama residents in the case of Merrill v. Milligan.
In arguments for the voting rights case on Tuesday, Jackson tore apart reasoning Edmund LaCour, Alabama’s solicitor general, attempted to employ in arguing that Section 2 of the Voting Rights Act does not require the state to stop using a “race-neutral” approach to redistricting.
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Having already earned a temporary stopgap from the Supreme Court, LaCour is trying to use the high court to permanently block a lower court's decision to toss out an Alabama congressional map said to have weakened the voting power of Black voters in ways that violated the Voting Rights Act.
"Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act," the Department of Justice explained on its website.
It’s unclear how a state can both utilize what it deems “race-neutral” redistricting practices while also ensuring that discrimination doesn’t occur.
Jackson illuminated that flaw in remarks captured on C-SPAN. She said that the framers of the Constitution's 14th Amendment, which grants citizenship and equal protection to former slaves, didn’t intended for it to be “race-neutral or race-blind.”
She said “they were in fact trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction Period, were actually brought equal to everyone else in society.”
She cited a report submitted by the Joint Committee on Reconstruction, which drafted the 14th Amendment: “And that report says that the entire point of the amendment was to secure rights of the freed former slaves,” Jackson said. “The legislator who introduced that amendment said that, quote ‘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 a race-neutral or race-blind idea in terms of the remedy, 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.”
Sherrilyn Ifill, president emeritus of the NAACP Legal Defense and Educational Fund, told NBC News she was “delighted” to see that Jackson showed “no reticence about entering the fray.”
“Her tone is upbeat and respectful, but she is tough, no nonsense and demanding,” Ifill said. “This was as impressive a debut as I’ve seen of a new justice in my more than 30 years of court-watching.”
Jackson’s dedication to truth-telling didn’t only surface in the voting rights case but also in oral arguments of the Sackett v. Environmental Protection Agency case.
The Supreme Court will determine in that case how much power the Environmental Protection Agency (EPA) will have under the Clean Water Act (CWA) governing the release of pollutants into the “waters of the United States.” Anna Todd wrote for Harvard Law’s Environmental and Energy Law Program that three different administrations, from that of former President Barack Obama to President Joe Biden, have worked to define “waters of the United States” in the CWA.
“However, the Supreme Court’s decision to hear Sackett v. EPA … this fall will potentially shape EPA’s rulemaking, implementation, and breadth of its authority under the CWA,” Todd wrote.
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The Sackett case is named after an Idaho couple aiming to construct their dream home near Priest Lake without the proper permits. Ignoring its proximity to Priest Lake, the couple's attorney, Damien Schiff, argued the Sacketts' property "contains no waters, much less waters of the U.S."
Jackson asked at one point during arguments ABC News covered: "Why is it that your conception of this does not relate in any way to Congress' primary objective? The objective of the statute is to ensure the chemical, physical, and biological integrity of the nation's waters.”
Franita Tolson, a law chair at the University of Southern California Gould School of Law, told NBC News although Jackson has only served two days on the Supreme Court, she has shown a willingness to ask tough questions.
"I think she will be a powerful voice in the court’s liberal block because she recognizes the importance of setting the record straight, even if she will likely be on the losing side of a 6-3 or 5-4 vote," Tolson said.
Good judges are more important now than ever. In some states, judges are on the ballot this November. In this episode of The Downballot, we shine a spotlight on elections for state supreme courts: actor and activist Julia Louis-Dreyfus. Together, Daily Kos and Julia are proud to announce their endorsement of seven Democratic candidates running for closely divided courts in Michigan, North Carolina, and Ohio. You can support this slate by going to JusticewithJulia.com and donating today.