[This post is co-authored with Professor Seth Barrett Tillman.]
On Monday, February 12, 2024, Professor Mark Graber printed a submit on Balkinization in regards to the February 8, 2024 oral argument in Trump v. Anderson. He argued that the questions posed by Justice Jackson had their basis in white supremacy. We chorus from characterizing his argument additional. As an alternative, we report these excerpts:
As an alternative, justices on each the left and proper made deeply problematic historic assertions unaware of their foundations within the white supremacist commitments of the historical past occupation for many of the twentieth century. . . .
The questions from many Supreme Court docket justices in oral argument evinced a great deal of sympathy for Dunning Faculty dogma, minus the overt racism. . . .
Jackson got here too dangerously shut to articulating Dunning Faculty commitments when she prompt that Senator Reverdy Johnson of Maryland appropriately thought Part Three exempted the presidency, regardless that Johnson instantly recanted after being corrected by a Republican. Dunning Faculty historians thought Johnson the best lawyer within the Senate. He had, in spite of everything, satisfied the Supreme Court docket because the victorious lawyer in Dred Scott that the Structure forbade bans on slavery in American territories, prohibited freed slaves from changing into residents of the US and regarded African-People as having no rights white Americans have been obligated to respect. Johnson was one in all many Democrats who continued to keep up after the passage of the Thirteenth and Fourteenth Amendments that the US was dedicated to a white man’s authorities. These sentiments, the Dunning Faculty thought, made Johnson a superb lawyer. Modern historians disagree. Jackson when writing or signing opinions would possibly contemplate discovering a distinct authority on the that means of the post-Civil Battle Amendments.
We’re assured that Justice Jackson—together with every of her eight Supreme Court docket colleagues—is absolutely able to understanding the “foundations” of “white supremacy,” and Jackson can determine for herself which authorities are persuasive.
We, Blackman and Tillman, are each realists. We now have actual doubts whether or not our amicus transient will persuade any single Justice to vote in another way than that Justice would in any other case have voted. Likewise, we doubt our publications, taken individually or collectively, will doubtless affect any a number of Justices to vote in another way than they’d in any other case have voted. Against this, as to Graber’s Balkinization submit, we expect it more likely to maneuver Justice Jackson into the “Trump” camp and in direction of the “President is not an officer ‘of‘ or ‘beneath‘ the US” place than something we have now written or are prone to write sooner or later.