What I'm reading: The U.S. Supreme Court's new term
And a new perk for subscribers
I lost a work day this week while observing the Jewish holiday of Yom Kippur, so I’m playing catch-up on a bunch of Iowa politics stories at Bleeding Heartland. If you want to receive emails a couple of times a week with links to all the recent coverage at my website, subscribe to the Evening Heartland newsletter.
I rarely write about the U.S. Supreme Court, and when I cover a decision, I normally focus on the Iowa angle. But I try to keep up with others who regularly cover the high court’s work.
As you may know, the Supreme Court’s new began this week, with Justice Ketanji Brown Jackson on the bench.
Steve Mazie, a longtime friend of mine who grew up in Des Moines, previewed the Supreme Court’s upcoming term for The Economist. (You may enjoy Julie Gammack’s post about Steve from July, after he appeared on one of the Zoom calls available to her subscribers.)
This C-SPAN video shows Justice Jackson asking her first question during oral arguments on Monday. The case is Sackett v. EPA, which concerns the proper test for what's considered "waters of the United States" and "navigable waters" under the Clean Water Act.
Charles Lane wrote about that case for the Washington Post, and Ian Millhiser covered it for Vox.
On Tuesday, the Supreme Court heard arguments in Merrill v. Milligan, which Millhiser previewed as “Alabama’s high-stakes Supreme Court fight over racial gerrymandering.”
Supreme Court Twitter exploded after Justice Jackson made her presence felt by noting that the 13th, 14th, and 15th amendments were adopted "in a race conscious way." Reading from contemporaneous reports related to the 14th Amendment, Jackson noted that it was "not a race-neutral, or a race-blind" idea. You can listen to her history lesson here.
Chris Geidner, author of the Law Dork Substack, wrote in a piece for MSNBC, “I have never seen a justice begin a career on the high court in the manner we are seeing from Jackson.” She opened a “line of reasoning — and reality — that has been missing from the court’s discussions altogether for decades.”
“I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson told Alabama Solicitor General Edmund LaCour Jr. — and, just as likely, the justices alongside her.
This was not a standalone point. It was a windup to a dismissal of an entire motivating principle of the conservative legal (and, at times, political) movement. It was what I imagine is just the beginning of Jackson’s argument — on conservatives’ own ground of “history and traditions” — against “race-neutral” constitutional standards in a nation (and world) of regular, systemic and extreme examples of racism.
Referring to the “history and traditions” standard — so often invoked by Thomas and others using some version of originalism or “original intent” as their means of constitutional interpretation — Jackson said, “[W]hen 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.”
Following the oral arguments, Millhiser predicted, “The Supreme Court is likely to weaken, but not destroy, the ban on racial gerrymandering.” Even the court’s conservatives seemed skeptical of some of the arguments Alabama raised.
Last link for now: Mark Joseph Stern interviewed law professors about the Supreme Court’s new conservative majority. His article for Slate focuses on how “thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. […] Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?”
Programming note: Like everything I publish at Bleeding Heartland, all content on this Substack is free to all subscribers.
But the Iowa Writers Collaborative is introducing a special feature for paid subscribers. They will be invited to the “Office Lounge,” a monthly Zoom gathering of the Iowa Writer’s Collaborative members. The Office Lounge call will be on the last Friday of the month, unless that’s a holiday.
This month the virtual gathering will happen on October 28 from noon to 1 p.m. There’s no need to RSVP. The week before, all paid subscribers (to this Substack, or to any others in the collaborative) will receive the Zoom link. If you feel like logging on, you can join the conversation on October 28, or just listen.
Here’s the current list of Iowa Writers Collaborative authors, in alphabetical order:
Great news about the Office Lounge! I listened to a podcast where Mark Joseph Stern described his Slate article in which he summarized his interviews with many law professors. I found it sad and upsetting to learn that they can hardly keep their syllabuses updated because of the rapid fire Supreme Court decisions that are being used remove rather than expand human rights. Some professors hang on and fight the good fight. Others retire because they can. These are the times in which we live.
Sent from my iPhone
It’s great to see that in this case Jackson the “history and tradition” standard against the majority.