Justice Jackson's 'Race Conscious' History
S E E D E D C O N T E N T
Replacing one-ninth of the Supreme Court inevitably changes the dynamic, and Justice Ketanji Brown Jackson wasn't shy this week at her first oral arguments. All three of the liberals were aggressive questioners, as they joined to battle conservative legal arguments like a Greek phalanx.
What deserves more reflection is Justice Jackson's soliloquy on the original intent of the 14th Amendment, which she says isn't colorblind. Her aim was to refute the idea that the Equal Protection Clause would be impinged if the Supreme Court requires Alabama to gerrymander by race to give the state a second majority-black House seat.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Justice Jackson said. “The framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.” She added: “I looked at the report that was 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.”
This argument doesn’t go as far as she seems to believe. The lawmakers who passed the 14th Amendment in the year after the Civil War were clearly “conscious,” to use her term, of the need to protect the emancipated former slaves. But they did it in the 14th Amendment by guaranteeing “the equal protection of the laws,” regardless of race. It’s a stain on American history that black citizens living under Jim Crow in the South continued to be denied that promised protection for another century.
But the principle is sound. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Justice John Marshall Harlan argued in his famous lone dissent in Plessy v. Ferguson. “All citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
Though Harlan didn’t persuade his colleagues in 1896, he was ultimately vindicated. This week the left is cheering Justice Jackson’s forceful justification for “race conscious” policies like affirmative action. But it doesn’t take a Harvard Juris Doctor to understand the phrase “equal protection of the laws,” and to know that treating citizens differently based on race is the opposite.
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At one time the government did force the south to gerrymander to give southern blacks more political power. Regardless of the reasons back then, it violated the Equal Protection Clause back then and it would violate it now.
Some people are born on 3rd base and think they hit a triple, according to the famous line.
Some people are born on no base and are standing in the batter's box hoping or trying to make the best of it.
Affirmative action was begun because universities, professions and employers wanted to protect those born on third base, or at least first or second base. Colleges in some areas were not allowing admission to blacks. It was almost impossible for a black person to become a fireman in many big cities. Companies hired , proportionately, far more whites than blacks.
The issue with affirmative action is not "should it exist" ? , it is "when has the work been done?" the former is not a legitimate question but the latter is, and the society is trying to work that out right now.
Jackson's point I think was that a constitutional amendment was passed with the expressed purpose of helping black people. This is her interpretation of "original intent" of the amendment. She is mocking the conservative insistence that we should not only go by the text of constitutional passages, but also the intent of those who framed it. Jackson says the intent in that case was to specifically help blacks gain equality. She even sees it in writing
It seems to me that all she did was give originalists some of their own medicine.
So you see her remarks as disingenuous.
Jackson states that the Framers of the 14th Amendment adopted it “in a race conscious way,” “trying to ensure that people who had been discriminated against, were brought equal under the law, 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.”
I'm good with that.
But then she and now JR, asserts that the 14th Amendment doesn’t embody “a race-neutral or race-blind idea in terms of the remedy” for discrimination against freed slaves. That somehow, the amendment is an obligation to engage in affirmative action (discrimination) in favor of some groups”.
The 14th Amendment ensures that states shall not “abridge the privileges or immunities” of citizens, irrespective of their race; shall not “deprive any person of life, liberty, or property, without due process of law,” irrespective of the person’s race; and shall not deny any person the “equal protection of the laws,” irrespective of the person’s race.
Like in our Declaration, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers..."
We have a right to the pursuit of Happiness, we don't have a government backed guarantee to be happy.
The whole point of what Jackson said to is to point out the use of "original intent" to interpret constitutional texts. She sees original intent in the creation of the 14th amendment to specifically help blacks attain equality. Can equality be attained without help if one group "starts" far behind the other?
If the 14th amendment in itself was an all encompassing magic bullet, why was a Civil Rights movement so necessary 75-100 years later?
So you no longer see her remarks as mocking, what made you change your mind?
The 14th Amendment granted citizenship to all persons born or naturalized in the United States—including former enslaved people—and guaranteed all citizens “equal protection of the laws.” Equal protection of the laws doesn't guarantee me a seat at a university and it doesn't guarantee me a job.
Has anyone other than JR called this amendment a magic bullet, well maybe Justice Jackson is. We needed the Civil Rights Act of 64 because some states either by state law or practice discriminated on the basis of race to access of public accommodations and federally funded programs. It also recognized that while voting procedures are primarily the domain of state and local officials, they cannot otherwise deny the ability to vote based on race.
Dude, your silly attempts to declare that I dont know American history are getting annoying. You need to start paying attention better.
Did you read the seeded article? If you read it and understood it I dont think you would have made that comment. Jackson is not disputing what is in the text of the 14th amendment, she is using the "original intent" of the framers of the 14th amendment, which she found in the report of the Joint Committee on Reconstruction, in order to make her argument that blacks can be granted special help. The original intent of the 14th amendment says so.
Do you have any thoughts about what Jackson says is the "original intent" of the 14th amendment?
Yes I read it and believed that I understand what I read.
I hadn't read the report of the Joint Committee on Reconstruction, in order to make her argument that blacks can be granted special help. have you? I haven't thoroughly looked for it, maybe there were multiple reports, but this one focused on Southern Representation in Congress. I don't see anything about special help.
I also found this with mention of special help.
Maybe Judge Jackson will expand on her reasoning as well as what special help would qualify in her dissenting opinion next Spring.
I read the article. She is QUOTED in the article. I am not guaranteeing that the report of the Joint Committee on Reconstruction says exactly what Jackson says it does. I havent read it.
The seeded article is about Jackson's position, and that is what I have commented on.
“ “The framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.””
Uh, no. I don’t believe any of the framers were alive by the time the 14th and 15 amendment were added. This activist clown is on the supreme court because of two things, she is a colored woman.
She is talking about the framers of the 14th amendment.
Wasnt that hard to figure out.
Her point is that there is, in her opinion, original intent in the amendment to specifically help black people. She has a reference ,to the drafting process for the amendment, to back up her position.
Then why didn’t she say the framers of those two amendments? Typically, when one refers to the “framers” one is speaking of the founding fathers. Not that hard to figure out, johnny.
I cant help you understand what she clearly meant unless you want to be helped. Do you actually believe that a Supreme Court justice doesnt know what "framers" means?
That’s ok john, i think you have a hard enough time understanding what you’re saying.
I’m sure she does but it’s surprising she isn’t crystal clear in what she says regarding the law. not a good sign for somebody on the supreme court. But, she is the token choice. Biden made that very clear.
Maybe she'll apologize for causing such confusion among her conservative readers.
“But, she is the token choice.”
Thus rendering any further comment self-explanatory. Time to launder your sheets.
Jackson is in favor of gerrymandering to give black boters more power. It's fairly straightforward John.
You can't blame her for the confusion of people who are easily confused. It's like blaming a car bumper for making a dog chase it.
“Time to launder your sheets.”
no, they’re fine because you don’t have access to them.
Are you aware that race influenced gerrymandering already exists? I remember hearing about, I think it was Texas , where re- districting was drawn in a way to completely eliminate a safe minority district. I think it was a white majority state legislature that did that too.
The position of a lot of conservatives is that its ok for them to do whatever they want, but when minorities try it the right wing starts howling.
Polly want a cracker?
Maybe next Spring, in her dissenting opinion, she will clear up what she thinks is a race-conscious remedy and when such a remedy is permissible.
Your comment would carry a little more weight if one time you ever said anything to posters calling Thomas an Uncle Tom, but now it just looks lonely.
And that is her opinion, but what I read in the framers of the amendment was to put black citizens on the same footing as anyone else where it came to the protections of the US Constitution... What she is saying is they intended a METHOD to do such, of which there is no mention in the framers documents...
What makes the liberal position racism, is the intent to act on a racial basis and justify it with rhetoric... That establishes intent to discriminate...The intent to discriminate is racism by definition and anyone who preaches it is racist by definition...
Which is just about everyone who preaches for affirmative action.... And it doesn't work anyway... Colleges and universities found that out and quit doing it cause they were being forced to lower their education standards.. What the democrats are doing is trying to re-establish it as government policy and what they want is to codify it into law...
Racism is racism, it is evil where ever it is practiced and there is no individual racial group that is against practicing it...
Haters will hate no matter what... And we have a race hater on the supreme court now...
Thank you Sir....There it is.
I'll tell you what she is looking at. After the Civil War the US government stuggled with not only protecting the freed slaves new voting rights, but also with giving them some political power as well. In two of the southern states that the federal government administered during reconstruction and later with the Voting Rights Act, there were actually more black citizens than white ones. Obviously, that is the reason for the south's resistance. We all know most of the history of that struggle, despite what some say, we learned that in school. One of the things that is little known is that when the Voting Rights Act was first implemented the federal government actually gerrymandered certain districts in the south to give black voters an advantage:
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All of that plus the questionable tool of the "Preclearance" clause of the Voting Rights Act was ended by the SCOTUS in 2013, but that is what Jackson wants to return to.
I think Jackson can count. She knows that this is a very conservative court that will vote in very conservative ways. She does not expect her argument about the 14th amendment to change future SC decisions. What she was doing in pointing out fact that original intent can be in the eye of the beholder.
The "intent" she is referring to is in the report from the Joint Committee on Reconstruction, and why shouldnt that be considered ? After all, in the Heller decision Scalia went back to passages in English law (from England) in which he says he detected an intent for everyone to have a right to own guns.
Jackson is just using their own tactics on the originalists.
Jackson is a grandstanding mouth who reads whatever she wants into everything... Just look at her decisions as a district judge.... there wasn't a precedent she wouldn't toss out the window when it came to doing what she wanted...
It's interesting that you guys like someone so much and is willing to do what you hate... (ignoring so called precedent) Oh I forgot, when it comes to a liberal belief it's ok to ignore precedent, but any other belief it ok to stomp all over it...
She is a constant reminder of the work that still needs to be done...
You seem to bounce back and forth between advocating that Justice Jackson had sound legal reasoning to celebrating her mocking of Originalist reasoning.
Well, unless you believe mocking originalism is sound legal reasoning.
I think I remember Jackson saying she agrees with originalism when she gave her testimony to the Senate committee. But she wants originalism to apply across the ideological spectrum, I assume, and not just apply to what conservatives want.
Deciding the "intent" of people who have been dead a couple hundred years is a subjective business isnt it?
I remember you characterizing her comment as mocking 2.
And in 3.1.15.
Dont worry about what I say, worry about what you say. You like to try and interrogate people. My comments on this are not mysterious.
I'm not worried.
I sorry that you felt interrogated.
Well, it's still unclear to me from the mixture of your comments, if you thought she was mocking or reasoning as it seems that you claimed both.
You like to just go around in circles in order to make some off the wall point only you have in mind.
That is not how I comment on forums.
You keep avoiding your contradiction between characterizing Justice Jackson's comments as mocking versus genuine legal reasoning. I'm inclined to think that she was expressing what she really believed but you thought it fun to see it as mocking.
Let's table this for now and revisit when the decision and dissents are issued.
It's very simple, she could both be mocking conservative jurisprudence total reliance on originalism and presenting an argument based on originalism on this one issue.
I think that Justice Jackson has a more logical, organized mind than that, but perhaps you are right.
“This activist clown is on the supreme court because of two things, she is a colored woman.“
Does being a ‘colored woman’ (whatever that means) necessarily dismiss her from sitting on the court?
Not at all but those were the only two criteria used when filling that seat.
Right, it couldn't have been that she went to Harvard Law school, served as an editor of the Harvard Law Review, began her legal career with three clerkships, one being with U.S. Supreme Court Associate Justice Stephen Breyer and prior to her job on United States Court of Appeals for the District of Columbia Circuit, she served as a district judge for the United States District Court for the District of Columbia from 2013 to 2021 and was also vice chair of the United States Sentencing Commission from 2010 to 2014 and has been a member of the Harvard Board of Overseers for six years. Nope, she must have been picked only because she's a "colored woman". That sounds a lot like something a jealous scum bag racist white sniveling piece of shit with an 8th grade education and ZERO accomplishments might say to make themselves feel better.
I cannot believe the arrogance and ignorance from some folks whom you educate so well
When Jackie Robinson broke the major league baseball "color barrier" in 1947 , it was widely known that Branch Rickey had specifically chose Robinson FOR THAT PURPOSE. Rickey intended to put a black player on his team, which by necessity and logic cost a white player his spot on the roster that year.
While Im sure some white racists bemoaned that a Negro was being "given" a spot , Rickey didnt care. It was time.
Same thing with Justice Jackson. Biden said "its time" and so he tipped his hand publicly to recognize the moment. There is absolutely nothing wrong with it.
She is just as much a token as liberals declare Justice Thomas a token Uncle Tom.
She is no Jackie Robinson, period.
Jackie Robinson was a baseball legend before he hit MLB.
She will never be a legend as a Supreme Court Justice. Never will never be a legend at any level in law.
No, Biden did say the first Black Woman Justice. Just because the main-stream media got it wrong in the beginning when they got all excited that Biden was nominating the first Black Justice is no reason to get it wrong here. One of Biden's campaign promises was to nominate the first Black female to SCOTUS. IMO there was a better choice but a President does get to nominate who they want. The whole elections have consequences thing.
black woman dude
Race and sex stereotyping instead of choosing the most qualified candidate.
Identity politics, of course.
Ive already explained it to you. When Rickey decided to put a black player on the team he wasnt concerned if Robinson was the best possible baseball player in the world that could be added to the Dodgers, he was going to intentionally put a black player on the team that year.
Its the same thing with Jackson, if on a less dramatic scale. Is jackson THE most qualified person in the country that could have been chosen? I suppose that is a matter of opinion, but she is certainly qualified.
I try to keep things simple. You try to make them convoluted.
My way is better.
I thought that both Harrison Ford and Chadwick Boseman gave a fine performance in 42. A very inspirational movie that mostly stuck to the facts. Boseman looked and moved like an athlete and had the challenge of making this legendary and stoic man seem real. I didn't know who Wendell Smith was or the role he played in making Robinson the trailblazer he was and achieve Rickey's vision.
Bullshit, she actually represents the majority of black Democratic voters. It's not a "token" when the party has the most diverse elected representatives and has 80% support from black Americans.
" most black Americans have not embraced the conservative Thomas — or worse, despise the man who was tapped in 1991 to replace retiring civil-rights icon Thurgood Marshall on the nation's highest court. That's according to a new biography of Thomas, Supreme Discomfort ."
"I'll put it like this," said basketball legend Kareem Abdul Jabbar. "If he let people know that he was going to be at some public destination, let's say in Harlem, at a certain hour on a certain day, let's see how many supporters would show up and how many detractors would show up." The National Basketball Association's all-time leading scorer was another who had discovered Higginbotham's law article and wondered: How can someone who benefited so richly from affirmative action not support the same remedy for those in similar circumstances?
In an attention-getting 1994 lecture at the Hastings College of Law in San Francisco, Higginbotham used his hour-long remarks to issue a stiff condemnation of Thomas's jurisprudence.
" I have often pondered how it is that Justice Thomas, an African American, could be so insensitive to the plight of the powerless. Why is he no different, or probably worse, than many of the most conservative Supreme Court justices of this century? I can only think of one Supreme Court justice during this century who was worse than Justice Clarence Thomas: James McReynolds, a white supremacist who referred to blacks as 'n#@*&rs.' "
Powerful Yet Despised: Clarence Thomas' Story : NPR
It's 2022, and the term "colored" has been used since the 1960's... maybe into the 70's. I mean what color are they?
I'm wondering why Jackson didn't face the scorching that Thomas faced?/S
What’s wrong with colored? Naacp? All the wokesters refer to poc, people of color. I’m not trying to offend anyone and i don’t see how that’s offensive.
I didnt see Perrie refer to Clarence Thomas, or Justice Jackson. She referred to the popular use of the word "colored' which has been widely considered to be a demeaning reference for decades now. "Colored" is a direct, if sometimes unintentional reference to the pre-civil rights era.
So why is "people of color" ok if colored is not? Because of the usage.
Also, "people of color" refers to all non white people, not just blacks.
I don’t accept your definition because you think everything is racist.
She asked about color. I'm asking if Thomas is different in that regard than Jackson.
So why is "people of color" ok if colored is not? Because of the usage.
I don't think it's racist to use the word colored. It's disgusting that anyone need go there.
Can anyone defend Jackson's un-Constitutional, un-American position?
“I don’t accept your definition because you think everything is racist.”
Well…some things on their face most certainly are…and when defended, show either an incredible ignorance or an obvious obfuscation.
Guessing the actual ‘people of color’ are shaking their heads at this entire thread as they are left dealing with the real disparities while us non-colored piss over semantics. Let’s be done.
No she didnt , she commented on use of the term "colored", nothing in there about Thomas or Jackson. maybe she will clarify for you, but if not, oh well, you are left to your own presumptions.
Yeah your post is a great example. Ty
Arguments over terms like "colored" are actually part of a low grade power struggle. Defining "the other" in the way YOU want to is an attempt to claim a broad , if low, level of superiority over them. Defining the terms in ones favor is a key component in any dispute.
The black community no longer accepts the term "colored" although there are a few stragglers, older people, in the black community itself who still use the term themselves out of habit , and i guess tradition.
We should refer to people in the way they wish to be referred, within reason.
I already have further up the seed.
This may help you:
"Usually considered offensive ... Coloured was adopted in the United States by emancipated slaves as a term of racial pride after the end of the American Civil War. It was rapidly replaced from the late 1960s as a self-designation by black and later by African-American, although it is retained in the name of the National Association for the Advancement of Colored People. In Britain it was the accepted term for black, Asian, or mixed-race people until the 1960s."
Its not only up to you anymore Vic.
No, John it's not up to virtue signaling racist Democrats anymore. You've been outed.
Time to drop the act and face reality.
So its not up to black people to decide how they want to be referred to by other races?
LOL. Keep fighting against reality.
Exactly, just like rednecks and hillbillies picked their collective names.
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The term was used ... and acceptable ... over a century earlier.
I believe Perrie meant to say the term has NOT been used since the 60's.
Perhaps, and that's fine if that's what she meant. But since the mid-20th century, colored and other "offensive" words have been very often used in music, poetry/literature as long as it's a black person who uses them. What say you about that censorship?
No John, you haven't. Do you even know what Jackson is proposing?
A self-designation?
Don't you mean liberals? The same people who alienated Hispanic Americans by calling them "Latinx"
I know what Perrie meant. She only wamted correct usage of words that she believes black Americans prefer. My comments were addressed to you because I know how you use it.
BTW, Perrie is far too intellingent to be brown nosed.
Black people want to be called black or African American. Is that a problem for you?
I know Perrie pretty well, and dont brown nose her (you can ask her if you dont believe me).
You have yet to make a comment on this article that is about what Jackson said, other than to call it "unAmerican". Why is it unAmerican? She is talking about the "original intent" of the 14th amendment.
We have seen, in other SC contexts, the argument that the "intent" of the framers takes precedence over the actual text of constitutional passages. Heller comes to mind. Jackson just climbed on board by showing that there was "original intent" in the 14th amendment to specifically help blacks gain equality. She even mentions the document that supports her view.
What is the problem?
I really don't care what someone wants to to be called, because that's part of what freedom means. By the way, there was no need to be aggressively in your face about it, John.
Not according to Emmanuel Acho.
Uh oh, I fear we have identified the left's newest Uncle Tom.
Did you make that determination for all blacks?
I hope they say so.
I'M sure a fuck not going to call him that. I make it a habit not to antagonize pro football players, current or retired.
Justice Ketanji Brown Jackson is all over the place with her thinking. Of course the 14th and 15th amendments were 'race conscious'. How could the institution of slavery be abolished without being race conscious? The 14th and 15th amendments apparently intended to remove that 'race consciousness' from the courts, in particular.
Justice Jackson seems to be using the historical fact of 'race consciousness' to make a segregationist argument. Jackson seems to be arguing for distinctly different applications of law based upon race. That's the same sort of race consciousness exhibited by the courts before slavery was abolished.
Before the Civil War and abolition of slavery, the justice was most definitely not colorblind. Justice Jackson seems to be making an argument for a return to antebellum justice. Jackson may believe that color sensitive justice will be benevolent but history doesn't support that view. The benevolence of segregated equity really does depend upon the courts seeing color as Jackson wishes. But once segregation becomes entrenched then it's too late to complain about justice not being blind.