Saturday, Oct. 8, 2022 | 2 a.m.
I almost feel bad for Edmund LaCour. Feel bad in that kind of way like when you saw momma catch your little brother doing something they dang well knew they weren’t supposed to do.
Oooooo, you’re in trouble.
LaCour is Alabama’s solicitor general, meaning he’s the state’s QB1 for legal plays in state or federal court.
On Tuesday, LaCour stood before nine U.S. Supreme Court justices and argued why it is perfectly right that Black Alabamians, who make up more than 25% of the state, should be represented by just one out of the state’s seven seats in the U.S. Congress. Why a map drawn with just a single majority-minority district 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.
A three-judge lower court said the map wasn’t cool. In fact, it wrote, the map “violates federal law.”
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.
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.
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.
“The Framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment in a race-conscious way … 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 crush 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 … 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 …
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).
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.
Roy 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. He wrote this for al.com.
