Alabama’s SCOTUS lawyer gets critical race history lesson, courtesy Justice Ketanji Brown Jackson
This is an opinion column.
I almost feel bad for Edmund LaCour. Feel bad in that kind of way like when you saw momma catch your baby sibling doing something they dang well knew they weren’t supposed to do. Or when your know-it-all cousin says the wrong thing to the wrong person—to someone who knows a whole bunch more than cuz.
Feel bad in the kind of way that makes you gasp, slap your hand over your mouth, take a few steps back, and watch.
Oooooo, you’re in trouble.
LaCour is Alabama’s Solicitor General, meaning he’s our QB1 for legal plays in state or federal court. He’s 37, a graduate of Birmingham-Southern College and Yale Law School. Well learned, certainly, and passionate about his positions.
Our debates on many of them, I’m sure, would be spirited.
On Tuesday, LaCour stood before nine U.S. Supreme Court justices and argued why it is perfectly right that just above a quarter of Alabamians, Black Alabamians, be represented by 14 percent of those elected to represent the state in the U.S. Congress. Why a map drawn with just a single majority-minority district among seven—one, District 7, that looks as if it was Etch-A-Sketched after tequila shots, lurching through three large (and Black) cities and 10 of the Black Belt’s 14 rural counties—is cool.
Cool with more than just the Republicans who drew it.
Cool with the U.S. Constitution. Cool with the Voting Rights Act of 1965, and its under-siege Section 2, which prohibits voting shenanigans that discriminate on the basis of race or language.
Related: Hey, Republicans, anti-voting rights is anti-American, even anti-Republican
A three-judge lower court said the map wasn’t cool, or “substantially likely” not cool. In fact, it wrote, the map “violates federal law”, adding that legislators, the map’s obstinate architects, be “mindful of the practical reality, based on the ample evidence of intensely racially polarizing voting adducted during the preliminary injunction proceedings, that any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something close to it.”
That’s how LaCour, and his boss, Alabama Attorney General Steve Marshall, found themselves before the highest court on the second day of its new session. How LaCour, at one juncture, opened his mouth to argue that the one-district map was “race-neutral” and that redrawing it could put Alabama in violation of the Constitution’s Equal Protection Clause of the 14th Amendment because it elevated race as a primary factor.
Related: Rep. Terri Sewell, Alabama voting advocates on SCOTUS case: ‘Fair representation matters’
I wish I could have seen the face of the court’s newest, Justice Ketanji Brown Jackson. I wish I knew if she drew a breath before responding, if she took off her black-frame glasses. Cameras are not allowed in Supreme Court chambers, so I could not see any of that.
PREVIOUS: This is how the Voting Rights Act ends
I can hear it, though, hear it all in her voice.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an Equal protection problem,” she began.
Oooooo, you’re in trouble.
“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 drill down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment in a race-conscious way, that they were, in fact, trying to ensure that people who had been discriminated against—the [Black] Freedmen during the Reconstruction period—were actually brought equal to everyone else in society. I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the 14th amendment.”
Oooooo, you’re in trou-BULL.
“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 quote, unless the constitution should restrain them, those states will all, I fear, keep up this discrimination and crushed to death the hated freedmen, [unquote]. That’s not a race-neutral, or race-blind, idea in terms of the remedy, 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.”
Oooooooo…
Later, she continued: “They drafted the Civil Rights Act of 1866, which specifically stated that [Black] citizens would have the same civil rights as enjoyed by white citizens….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 14th 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. With that as the framing in 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’s remedied—it’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the 14th Amendment, given the history and background of the 14th amendment.”
Ooooooooooooo…
Alabama wants to pervert the 14th Amendment to gut voting rights. So Justice Ketanji Brown Jackson decided to give them a much-needed history lesson. (As it turns out, originalism isn’t just for conservatives.) pic.twitter.com/1y3hgpGyjx
— Mother Jones (@MotherJones) October 4, 2022
I almost feel for LaCour. Almost. That was a critical race lesson, administered by the first Black woman to sit on the nation’s highest court. Not a theory, a lesson—based on facts. On history. A history everyone sitting on that court should know (though I doubt do) and that any one of them should have expressed (though I know wouldn’t have—or substantially unlikely wouldn’t have).
Related: SCOTUS could leave Alabama with two Black districts. Or zero.
Who knows if Jackson’s eloquent argument will sway enough of her peers to overcome the conservatively stacked court? And we may not know for a while. Yet now we know this: Edmund LaCour said the wrong thing with the wrong person in the room.
Or the absolute right person.
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Roy S. Johnson is a 2021 Pulitzer Prize finalist for commentary and winner of 2021 Edward R. Murrow prize for podcasts: “Unjustifiable”, co-hosted with John Archibald. His column appears in The Birmingham News and AL.com, as well as the Huntsville Times, the Mobile Press-Register. Reach him at [email protected], follow him at twitter.com/roysj, or on Instagram @roysj.