October 5, 2022

NOBODY JOE BIDEN PICKS FOR ANYTHING SEEMS TO BE ABLE TO SPEAK CLEARLY AND TO THE POINT: KBJ’s Jumbled Musings on the Fourteenth Amendment.

In today’s oral argument in Merrill v. Milligan, Justice Jackson capped her very long questioning of Alabama solicitor general Edmund LaCour with a speech/question that went on for around four minutes and that runs a full three pages (57:2-60:2) in the transcript. In her speech, 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.

So if it’s all about remedies for slavery, I guess it’s not going to protect abortion or contraception or gay rights, then. Interestingly, when Robert Bork advanced a similar theory of the 14th Amendment it was poorly received.

But there’s more:

I don’t understand her leap. By her own account, the very purpose of the Civil Rights Act of 1866 was “to make sure that the other citizens, the black citizens, would have the same [civil rights] as the white citizens.” It was designed to remedy a situation in which “people, based on their race, were being treated unequally” by the states. And the 14th Amendment had the same goal.

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.

Jackson seems to confuse herself with her own terms.

Well, she’s new on the Court but this doesn’t bode well.

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