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Drudge Retort: The Other Side of the News
Wednesday, October 05, 2022

As the Supreme Court on Tuesday weighed a conservative attempt to weaken the landmark Voting Rights Act, enacted in 1965 to protect minority voters, the first Black woman to serve on the Supreme Court, Justice Ketanji Brown Jackson, delivered a history lesson on the divisive issue of race in the United States. In just her second day on the bench, she spoke about the enactment of the Constitution's 14th Amendment, stressing how its aim was to redress historic harms to Black people in the aftermath of the Civil War and the end of slavery.

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Exploring the history that lurks in the background of the dispute over Alabama's congressional districts map, Jackson said that "the entire point of the amendment was to secure rights of the freed former slaves." As a result, she wondered, how could the state be barred from considering race when deciding whether more majority Black districts should be drawn?

Her intervention in the midst of an oral argument on Alabama's defense of its map that a lower court said discriminated against Black voters was just one example of Jackson's active role in her early days on the high court.

There are multiple active threads regarding the cases before the SCOTUS in its first two days of the new term. Justice Jackson has already made her voice her from the bench in both cases, engaging lawyers and setting forth the undeniable truth that the Equal Protection Act and the 14th and 15th Amendments were codified with specific racial intent - the state recognized that newly freed blacks were not treated as equal citizens, so legislation was passed in deference to this racial imbalance - as a matter of originalism.

Which is basically the very same reason the Voting Rights Act was passed and repassed since its birth - minorities were being stripped of their political power through actions and policies which discriminated against them.

It's going to be interesting to see Alito and his cohorts find a grounds to rule that legislation written to provide a race-based remedy to insure the non-dilution of political power is somehow not actually supposed to do just that.

#1 | Posted by tonyroma at 2022-10-04 09:31 PM | Reply

BBBBUUUTTT SSSSHHHEEEE CCCCAAANNNNTTTT DDDEEEEFFFIIIIIIINNNNEEEE AAAAAAA

WWWWWWWWWOOOOOOOOMMMMMMMMAAAAAAANNNNNNN!!!!!!!!!!!!!!!!!!!!!!!

#2 | Posted by snoofy at 2022-10-04 09:33 PM | Reply

Meanwhile, Clarance "I don't ask questions or talk" Thomas was probably checking porn on his cell phone.

#3 | Posted by AMERICANUNITY at 2022-10-04 09:36 PM | Reply

Justice Jackson used originalism to destroy originalism

14th amendment was written to be race-conscious so it's fine to take race into account now

A brilliant Black woman on the Supreme Court just gutted Alabama's rationale for suppressing the Black vote

A legend in the making

Lindi Li

#4 | Posted by tonyroma at 2022-10-04 09:55 PM | Reply

@#4

Yeah, the arguments she presented were cogent and rationale.

But I gotta ask, how does that matter with the current political degradation of the Supreme Court?

Anyone?


Seconds of Pleasure - Pull me up
www.youtube.com

#5 | Posted by LampLighter at 2022-10-04 11:12 PM | Reply

But I gotta ask, how does that matter with the current political degradation of the Supreme Court?

By giving Democrats and constitutional believers a talking point to repeat over and over again that basically has no factual counter:

"If you believe in originalism, then these anti-discriminatory laws and amendments were written to be racially conscious by point, so you cannot now come in here and say that a codified law is unconstitutional or inoperative since it isn't race neutral. The Act does what it's authors intended it to do - stop the majority from trying to usurp or dominate the minority's political power even as it applies to elections themselves."

This also happens to be precedent. If the public is simply educated on the simple facts and then the SCOTUS still went ahead and tosses the VRA, there would then be no public doubt such a majority are wholly political actors of the most corrupt ideological kind.

#6 | Posted by tonyroma at 2022-10-04 11:37 PM | Reply

Originalism is a patently absurd concept

To accept originalism thomas should be immediately removed from the court-he is black you know

A document created without the legal input of the majority of the citizens is not a valid sole source for current interpretations

To use that argument to justify stripping women of rights requires women to be second class citizens because they had no say in the laws used to justify current interpretations

Patently absurd

Put another way if women had equal rights in the 18th century abortion would be in the constitution

#7 | Posted by truthhurts at 2022-10-04 11:50 PM | Reply

#7 Haven't you heard of "Amendments", Truthy?

Fact is, originalism is the only logical approach to interpreting and applying the Constitution and law. The mechanisms for change are already in place. Win elections and legislate. in the absence of that what is on the books stands.

#8 | Posted by BellRinger at 2022-10-04 11:55 PM | Reply

@#8 ... Fact is, originalism is the only logical approach to interpreting and applying the Constitution and law. ...

Your comment asserts it as a fact.

So let me ask, why is it a fact?

What substantiation hast thou?


thx.

#9 | Posted by LampLighter at 2022-10-04 11:58 PM | Reply

Women had legal access to abortion in the 18th Century. There's even recipes for herbal products that caused abortions in Poor Richards Almanac.

#10 | Posted by RJSquirrel at 2022-10-05 01:44 PM | Reply

Unfortunately Ballwasher's dried up old coot of a mom did not.

#11 | Posted by LegallyYourDead at 2022-10-05 01:47 PM | Reply

in the absence of that what is on the books stands.

#8 | POSTED BY BELLRINGER

Searching for well-regulated militia...

#12 | Posted by Zed at 2022-10-05 01:55 PM | Reply | Newsworthy 1

Win elections and legislate. in the absence of that what is on the books stands.

#8 | Posted by BellRinger

"Just win elections and legislate!"

-the side that gets a massive unfair unjustified advantage in both elections and legislating ability

#13 | Posted by SpeakSoftly at 2022-10-05 02:17 PM | Reply

Originalism went into the GOP garbage pile when the Rightwing Court did as the GOP's NRA donors required for them to sell more guns... they kicked down over 200 years of gun laws.

How the NRA Rewrote the Second Amendment

www.brennancenter.org

They only dust originalism off and get it out of the garbage now when they want to use it if they think it helps their case.

#14 | Posted by Corky at 2022-10-05 03:57 PM | Reply

Fact is, originalism is the only logical approach to interpreting and applying the Constitution and law. The mechanisms for change are already in place. Win elections and legislate. in the absence of that what is on the books stands.

#8 | POSTED BY BELLRINGER

Sorry, that logic don't track.

What is "originalism"?

"A type of judicial interpretation of a constitution that aims to follow how it would have been understood or was intended to be understood at the time it was written."

Interpreting the laws, when the laws were written before women and PoC had the legal right to vote or even equality, inevitably results in women and PoC having less rights than white men. Those laws were written, expressly, without the input of women or PoC. So, to interpret them in terms of they would have been understood when they were written REQUIRES that they be interpreted without the input of women and PoC.

Dobbs is a perfect example. Dobbs use originalism to conclude that women do not have a right to abortion and relies on laws written before women had any say over those laws. Thus, the originalist argument for Dobbs REQUIRES women to have fewer rights then men.

I would imagine you would agree that men and women should have the same rights. But I may be assuming something not true there.

And to argue that the legislature is the correct path, that MIGHT be true but judicial action is ALSO an appropriate path. Because not everything was included in the Constitution and the Constitution is interpreted by the Courts. Ex. we did not need an Amendment to fund an Air Force, despite not being in the Constitution, but Congress and the Courts interpret the Constitution's of Army and Navy to include an Air Force.

So, we are back to originalism being inherently flawed as it disenfranchises women and PoC. To argue that rights cannot and should not be interpreted to exist if they are not expressly written in the Constitution is unworkable and wrong.

#15 | Posted by truthhurts at 2022-10-05 04:26 PM | Reply

Dred Scott v Sanford is Originalism at its finest.

That ought to tell you all you need to know.

As a bonus, it also tells you America was intended by the Founders to be a racist nation.

#16 | Posted by snoofy at 2022-10-05 04:33 PM | Reply

"Institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Thomas Jefferson

#17 | Posted by SomebodyElse at 2022-10-05 04:33 PM | Reply | Newsworthy 1

I haven't seen the arguments this article is referring to , but I read all her published decisions before I made up my mind about her. I really like this new justice and look forward to seeing what she brings to the court.

#18 | Posted by Miranda7 at 2022-10-05 05:21 PM | Reply

So, we are back to originalism being inherently flawed as it disenfranchises women and PoC. To argue that rights cannot and should not be interpreted to exist if they are not expressly written in the Constitution is unworkable and wrong.

#15 | Posted by truthhurts at 2022-10-05 04:26 PM | Reply | Flag:

I get that there are wrongs within originalism, and that there is a need for growth and change in the Constitution, and Federal Law. There ARE mecahnisms for doing that already. The Supreme Court should be more in the business of interpreting the Constitution and Laws passed by the Legislature, and less in the business of deciding general/moral "right" and "wrong".

#19 | Posted by Miranda7 at 2022-10-05 05:27 PM | Reply

Follow up to #19....

Whydon't I want the Supreme Court to decide "right vs wrong"? Because The morals of society change, what is "right" and "wrong" change across time and geography. I don't want to trust the determination of what is right and wrong for society to 9 people who are not beholden to the voters. Making laws and adapting to the changing mores of society is the function of representative government. Yes, they sometimes SUCK at doing that, but that is THEIR job, and we have the opportunity to influence them with our voices. our votes and our support, and we have a President who acts as a balancing power. The Supreme Court must not be subject to the whims of the voters, they should remain steadfast in a code, a system that is mostly fixed and unchanging. That code is the Constitution. Its not a perfect document, but it is about as close as we can get to having unwavering blueprint.

#20 | Posted by Miranda7 at 2022-10-05 05:40 PM | Reply

"I get that there are wrongs within originalism"

Try getting that it didn't exist until Scalia invented it.

#21 | Posted by snoofy at 2022-10-05 05:45 PM | Reply | Newsworthy 1

Why don't I want the Supreme Court to decide "right vs wrong"? Because The morals of society change, what is "right" and "wrong" change across time and geography.

Miranda, I truly believe that your heart is in the right place, but based on history, you've got it completely backward.

Slavery was legal. Women being the property of their husbands was legal. Child labor was legal. Denying everyone but white landowners the right to vote was legal. And I could go on and on.

In the history of America, the SCOTUS has often led while the Congress and legislatures followed, and that is for one very salient reason: The ultimate goal of the Constitution is to adjudicate justice, ie. fairness and liberty. The Founders were very clear that the laws we started with were not the be-all and end-all, and that as society changed so should our laws. We constantly struggle with changing mores as our society evolves and what was once fringe becomes mainstream as it regards notions of liberties and freedoms.

We would not have desegregated schools had it not been for the SCOTUS. We'd still have separate but equal if not for the SCOTUS. Same with interracial marriage, gay marriage, and up until June nationwide abortion rights. I would love if our elected officials enacted the laws which bestow more liberty, freedom and human rights upon citizens but due to our polarized existence - and lack of mandatory voting - we are where we are.

I am not saying that the SCOTUS should always make its decisions based on personal interpretations of right and wrong, but isn't that why they're justices in the first place? Their jobs are to balance the pull of justice - to arbitrate right from wrong - using our laws and Constitution as their guide.

#22 | Posted by tonyroma at 2022-10-05 05:56 PM | Reply | Newsworthy 1

"In the history of America, the SCOTUS has often led while the Congress and legislatures followed, and that is for one very salient reason: The ultimate goal of the Constitution is to adjudicate justice, ie. fairness and liberty. The Founders were very clear that the laws we started with were not the be-all and end-all, and that as society changed so should our laws. We constantly struggle with changing mores as our society evolves and what was once fringe becomes mainstream as it regards notions of liberties and freedoms."

Very good points Tony, Based on her past decisions, Justice Brown appears to be the perfect combination of textual, fact based originalist combined with creativity, thoughtfulness and compassion. I'm really looking forward to see how she contributes to the court, and love the way she did indeed, use originalism against the originalists.

I'm a "small government" person, so whenever I try to formulate an opinion about expansion of power or discretion to any particular branch or entity, I think about whether I would feel the same way if that power was in the hands of a person or group that I strongly disagree with. If I can't give the same answer, then my opinion needs reexamination. So I ask you, (Tony), considering the current composition of the court, do you really want this court deciding "right" from "wrong"? Or would you rather they stick to strict and literal interpretation of the Constitution?

Me, I would prefer they stay in their lane and let the Legislature legislate. Its not a perfect system but we the people have some opportunity to influence those decisions. We do NOT have the power to influence the Supreme Court, and that is the way it was set up to work best.

#23 | Posted by Miranda7 at 2022-10-06 02:07 PM | Reply

So I ask you, (Tony), considering the current composition of the court, do you really want this court deciding "right" from "wrong"? Or would you rather they stick to strict and literal interpretation of the Constitution?

Me, I would prefer they stay in their lane and let the Legislature legislate.I think most of would like the legislatures to legislate, but that simply does not happen, so wishing is all that will be accomplished if not for the SCOTUS actually doing something about inequities and injustices they've identified in the past.

And again, I thought that I made clear my thoughts of the SCOTUS' role in defining "right" from "wrong": THAT is their job! What do you think listening to two sides lay out arguments and then applying each justice's personal knowledge, understanding, and interpretation of the law and/or Constitution to reach a decision actually is? Isn't doing so the very definition of choosing between "right" and "wrong"?

The composition of the Court should not matter, and it's unfortunate that we're arrived at a point where jurists aren't unbiased arbiters of justice and instead rubberstamp political views not supported by the text nor spirit of our laws. This is why what Justice Jackson articulated from the bench was so powerful. Modern conservative justices have repeatedly found in their interpretations that the 13th, 14th, and 15th Amendments should be viewed as templates meant to insure race neutrality as the means to arrive at equality between races, when the authors of the legislation themselves left an undisputed written record that the main reason for the amendments were to force governments to implement race conscious policies and laws because states were intentionally discriminating against newly freed blacks and denying them equal treatment under the law. Both points cannot be correct, nor can they coexist because they oppose each other.

So to me, the "right" interpretation of the law is that a state trying to diminish the political power of 27% of their population through racial gerrymandering literally defines why the Voting Rights Act and its successors were codified. Implying that the VRA is unconstitutional because it doesn't advocate race neutrality is ignoring the purpose of the law in the first place! The authors established that the majority used their political power against the minority's interests and that the law should stop such actions from happening up to and including incorporating allowances to the minority which by fault would take some power from the majority.

To me, this principle is not an ideological one, it's the essence of legal interpretation and something we've seen historically from modern court majorities up until recently. Judges should be fair and unbiased - putting their own prejudices and preferences aside when wrapping in the robes and sitting on the bench. And that means there job is to indeed choose between right and wrong - or if it makes you feel better, choosing to advance just decisions as much as possible.

#24 | Posted by tonyroma at 2022-10-06 02:32 PM | Reply

Leaving it to the legislature is an extraneous argument, as I see it.

The 9th Amendment (in conjunction with the 14th Amendment) should perfectly address the "changing mores".

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

There are unenumerated rights. period.

Once those rights have been adjudicated-i.e. desegregation, voting, contraceptive use, abortion, pornography, same sex relations, same sex marriage-those are now rights. The SC should be EXTREMELY cautious about revisiting and overturning those rights. Because, as completely evident by Dobbs any side of an argument can be justified based on "precedent". In Dobbs, Alito cherry picked views and laws on abortion-the opposite could easily have been done. The SC should NOT be about disrupting society, throwing an effective compromise out the window based on such partisan views, especially when in Dobbs case they went farther than the plaintiff even asked for.

Now, I accept that sometimes the SC does have to revisit decisions, i.e. Dredd Scott, but to rescind rights of it's citizens? They better have a damn good reason (and no state's rights is a piss poor reason).

#25 | Posted by truthhurts at 2022-10-06 02:57 PM | Reply

#25

To my untrained ear, the Dobbs decision is indefensible due to not only the 9th Amendment (in conjunction with the 14th), anti-abortion laws should also be unconstitutional based upon 4th Amendment protections as well.

As I see it, no government has the right to "search" a woman - neither physically, nor through her medical records/history - to determine whether or not she's carrying a fertilized ovum inside her body. Being fertile and female does not constitute probable cause for government to intrude into personal medical information.

I believe that the original Court that decided Roe should have expanded their belief in the unenumerated right to personal privacy beyond the clause they mentioned in their decision. There was far more in our constitutional amendments pointing to such rights than there is in denying precisely what we've pointed to.

#26 | Posted by tonyroma at 2022-10-06 03:09 PM | Reply

As I see it, no government has the right to "search" a woman - neither physically, nor through her medical records/history - to determine whether or not she's carrying a fertilized ovum inside her body. Being fertile and female does not constitute probable cause for government to intrude into personal medical information.

Well, since the laws target health providers and not the women for criminal sanction, that is less of an issue.

#27 | Posted by truthhurts at 2022-10-06 03:50 PM | Reply

IOW it is illegal to provide and abortion it is not illegal to have an abortion.

#28 | Posted by truthhurts at 2022-10-06 03:51 PM | Reply

The lunacy of Dobbs is that States can legalize murder. There is no Constitutional Right to Life, and there is no Constitutional Right to Privacy.

No Constitutional Right to Life, and no Constitutional Right to Privacy, is a Fascist Wet Dream.

Perhaps Miranda7 would care to notice that.

#29 | Posted by snoofy at 2022-10-06 03:59 PM | Reply

#24
I am complete agreement with everything in your post, when I spoke of not wanting them to decide right from wrong I meant a general moral right and wrong, which intertwines very closely with and allows the injection of personal opinion, religious dogma and, other moral codes. I agree with your more specific application of right and wrong as it pertains to correct interpretation of the law.

#30 | Posted by Miranda7 at 2022-10-06 11:19 PM | Reply

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