Justice Ketanji Brown Jackson is here
Justice Jackson is preparing a path forward. Also: The FBI has crime statistics — sort of. Texas is set to kill a man tonight. And Radley Balko shares the story of Charlie Vaughn.
The abbreviated two-day first week of oral arguments at the Supreme Court is done, including arguments over a Clean Water Act case and a Voting Rights Act case. The court on Monday added nine more cases to its roster for the term — including a Section 230 tech immunity case. And, Donald Trump has gone to the high court to ask it to weigh in on whether the documents with classified markings on them taken in the Aug. 8 Mar-a-Lago search should be reviewed by the special master appointed in the case.
For my part, I wrote a column for MSNBC about what we’ve already learned about Justice Ketanji Brown Jackson. Her comments in the Voting Rights Act cases out of Alabama, Merrill v. Milligan and Merrill v. Caster, put her addition to the court front and center:
“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.”
Her voice will make a difference in arguments, and while it might not change the vote outcomes on the 6-3 conservative court in most divided cases this term, it could make a difference at the margins. More importantly, she provides a voice that we’ve been lacking. She is speaking to the cases before her and to her colleagues — but also to the country.
Justice Jackson is preparing a path forward.
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THE MEANING OF CRIME STATISTICS: Over at The Appeal, Ethan Corey — always a good read on data questions — writes this morning about the new FBI crime statistics. A peek:
As we prepare for the reactions to the new crime data, we must be aware of the limitations of the FBI statistics, and the ways they get manipulated for political purposes. The public’s perception of crime remains profoundly disconnected from actual crime rates, with the majority of Americans reporting that they believe crime has increased nearly every year between 1990 and 2020, according to Gallup opinion polling. In reality, violent crime fell during all but seven of those years, and property crime fell during all but two.
Read the whole thing.
In advance of the FBI’s data release, the NAACP Legal Defense Fund’s Thurgood Marshall Institute put out a report delving into questions about crime statistics, how they’re used, and how they’ve been misused in the past — and are sure to be misused going forward.
The report also focuses on something that I’ve found to be horribly ignored during the debate over crime rates in 2020 and 2021 — the extreme instability that accompanied that time.
It’s disingenuous to attempt to draw any conclusions for ~normal~ life by pointing to what happened to trendlines on any issue in 2020 and 2021. That should be obvious to anyone with half a brain.
Nonetheless, people from Donald Trump to Eric Adams to the big-dollar donors who bankrolled Chesa Boudin’s ouster in San Francisco would have us believe that a handful of “progressive prosecutors” in a small handful of jurisdictions and limited reforms to the criminal legal system in a few states and cities were the cause of a nationwide increase in some crime — and that it only incidentally happened to take place during a global pandemic. As this and other reports have noted, these increases happened nationwide, not just in those jurisdictions.
tl;dr: Be careful with crime statistics. Particularly when they’re wielded as a sword by those who have consistently over time sought to create an ever-more punitive criminal legal system.
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DEATH WATCH: Texas is scheduled to execute John Ramirez tonight.
He would be Texas’s third execution this year and the 11th nationwide.
Ramirez had received a stay of execution last year, leading to a Supreme Court case over the limits Texas placed on what his spiritual advisor could do during the execution.
He won the case — only Justice Clarence Thomas dissented — but, once changes were made allowing his spiritual advisor to pray audibly and lay his hands on Ramirez, that cleared a path for his execution to be scheduled once again. Dakin Andone’s story at CNN does an incredible job of examining Ramirez’s spiritual journey — and the role of those who support people like Ramirez on death row and in what could be their last moments of life.
The Marshall Project’s Keri Blakinger will be at the prison tonight, so follow her for updates on the scheduled execution.
[UPDATE: Texas executed John Ramirez.]
FINALLY: Check out Jessica Valenti’s latest Abortion, Every Day, newsletter for Oct. 4, detailing developments in this post-Roe country in a way that no one else is doing.
And, read Radley Balko’s first investigation at his newsletter, the story of Charlie Vaughn.
As Balko puts it, “A severely intellectually disabled man has spent more than 30 years in an Arkansas prison. The system doesn't care if he's actually guilty.”
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