Title : "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..."
link : "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..."
"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..."
"... 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.
"... 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
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.
Thus articles "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..."
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