I had no illusions that Ketanji Brown Jackson would have a “Road to Damascus” moment once seated on the Supreme Court, but during Monday’s oral arguments in Merrill v Milligan, Justice Jackson demonstrated that she misapprehends history and has trouble understanding simple words. During her confirmation, she did not know what a woman was. Equally, her reading of the word “citizen”, as found in the 14th and 15th Amendments seems to not match our common understanding.

By doing so, she’s invented a new form of textualism and originalism that is at odds with close to 150 years of precedence and logic. On Thursday, faithful leftist Toadie, Jennifer Rubin of the Washington Post authored a screechy op-ed in which Rubin claims Jackson established herself as a “potent intellectual force”, and the woman who single-handedly “blew up” the arguments of “right-wing” Justices hearing the Merrill case.

Jackson did neither.

From what I have heard so far, Jackson is not a legal luminary, nor is she right about the 14th and 15th Amendments. Rubin claims the majority will declare that a second “black majority” congressional district would be “unconstitutional”.

[Jackson] blew up that argument, illustrating why she is such a potent intellectual force and why faux originalists trying to undo remedies for enduring racism have so much to lose.

Rubin has been a consistent voice of silly, bombastic, and screechy legal and cultural takes for the better part of a decade. Thursday’s OpEd demonstrates that Rubin has retained her crown of screeches.

During oral arguments on Monday, Jackson claimed that contrary to the plain text of the 14th Amendment, it grants special rights, and special protections for post-war freed slaves called “Freedmen”. It’s an intentional misreading of history and the plain text of the amendment.

During her colloquy with Alabama’s Solicitor General, Jackson first placed the “founders” and “framers” in post-war Congress, as drafters of the 14th Amendment. That the “framers and founders” were long since dead by 1866 seems to have eluded Rubin. Jackson conflating the founders with post-Civil War congressmen doesn’t reflect well on Jackson being a “potent intellectual force”.

The purpose of the 14th Amendment was to afford equal privileges and protections to all “citizens”. Yes, it was drafted with former slaves in mind, but in fact “citizens” was the noun used. The drafters did not use nouns like “former slaves”, “negroes” or “blacks”. They could have but didn’t. Only in Section 4 does the amendment mention anything about freed slaves, and that was in the context of a former slave’s “value”. Section 4 of that amendment simply invalidated any claim by former slaveholders for compensation.

It also put to rest any attempt to “value” humans by confederates. Valuing humans was deemed “illegal and void”. None of the previous sections intended to confer more privileges or lesser privileges to any group or race. In fact, the intent was precisely the opposite. The intent was to make citizenship “race-neutral”.

It is undeniable that that wasn’t the result after reconstruction. And, it wasn’t just southern states that violated the 14th Amendment’s equal protection clause. Plessy v Ferguson’s “Separate but Equal” language was a perversion of the 14th Amendment finding “equality” while separating races. Brown v Board of Education overruled that precedent.

In 2013 in ruling in Shelby County v Holder the Supreme Court found that Section 4b of the 1965 Voting Rights Act was invalid and rightfully so. Section 4b was the byproduct of codified racist Jim Crow laws that southern states had enacted to suppress or eliminate black votes. Without Section 4, Section 5’s of the Voting Rights Act and its “preclearance” requirement became a dead issue.

Rubin goes on:

“Republicans have been telling themselves a useful fiction, namely that racism has vanished, and any attempt to teach about the enduring effects or to remedy enduring discrimination is unfair to White people and is unconstitutional.”

I don’t know a single Republican who has ever made these arguments. Ever.

Rubin isn’t smart enough to make her own legal arguments so she quotes two “experts”: Slate’s Mark Stern and election “guru” Rick Hansen. Both experts are, for the most part, wrong.

Stern considered Jackson’s arguments a “masterclass” in originalism, and Rubin cites him, saying:

“And by that [Stern] means it was historically pristine originalism, not the faux originalism of the right-wing majority that cherry-picks its way through history to reach a desired partisan end”  

Rubin, through Stern’s “brain” (which was channeling Jackson’s argument) stated that the Civil Rights Act of 1866 was intended to “ensure that the other citizens, the Black citizens, would have the same [rights] as the white citizens.”

It’s a nice line but the Civil Rights Act of 1866 applies to everyone, including, perish the thought, whites. Who says?

The Supreme Court.

In McDonald v Santa Fe Trail Transportation (1976), the Supremes found the Act applies to whites as well and specifically to “reverse discrimination”. The court said in McDonald that “The 1866 Act was intended to be a comprehensive statute, forbidding all racial discrimination concerning the basic civil rights protected in the statute under both sections, 1981, and 1982.”

Rubin, quoting Jackson in a “gotcha” moment wrote:

Jackson observed, “That’s not a race-neutral or race-blind idea in terms of the remedy.”

But, it is.

To borrow a line from Jennifer Rubin, Supreme Court “blows up” Jackson’s argument. The 1866 Civil Rights Act was not intended for only blacks. Equally, the 14th Amendment says “citizen” not “blacks”. It mentions no race.  Both the Amendment and the statute are “race-blind”, particularly in 2022.

Rubin’s other “expert had more “right” than Stern. Hansen rightfully observed that the Supreme Court isn’t likely to side with plaintiffs. The congressional district map was drawn along mostly county lines and because districts are based on population some districts inevitably bleed across a few county lines. With Gorsuch and Thomas previously stating that they don’t see the Voting Right Act applying to redistricting, it seems that Alabama has the votes to keep its redistricting map intact.

The bottom line? Rubin will lose her cookies again over the Supreme Court and over the state of America, and she will say that America generally, and Alabama specifically, exists in a Jim Crow south. Rubin lives in a time warp of racism. She’s wrong of course. About everything. Justice Jackson in her first week on the bench has shown that she is not ready for primetime. Nonetheless, I anticipate Jackson will write a scathing dissent based on her poor interpretation of the 14th and 15th Amendments, the Civil Rights Act of 1866, and The Voting Rights Act of 1965.

Media lackeys like Rubin will praise Jackson’s dissent, and her new progressive constitutional “originalism” while condemning actual originalism.

Wash. Rinse. Repeat.