The Volokh Conspiracy
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Professor Mark Graber Lectures Justice Ketanji Brown Jackson About White Supremacy
Mark Graber: “Instead, justices on both the left and right made deeply problematic historical assertions unaware of their foundations in the white supremacist commitments of the history profession for most of the twentieth century.”
[This post is co-authored with Professor Seth Barrett Tillman.]
On Monday, February 12, 2024, Professor Mark Graber published a post on Balkinization about the February 8, 2024 oral argument in Trump v. Anderson. He argued that the questions posed by Justice Jackson had their foundation in white supremacy. We refrain from characterizing his argument further. Instead, we report these excerpts:
Instead, justices on both the left and right made deeply problematic historical assertions unaware of their foundations in the white supremacist commitments of the history profession for most of the twentieth century. . . .
The questions from many Supreme Court justices in oral argument evinced a good deal of sympathy for Dunning School dogma, minus the overt racism. . . .
Jackson came too dangerously close to articulating Dunning School commitments when she suggested that Senator Reverdy Johnson of Maryland correctly thought Section Three exempted the presidency, even though Johnson immediately recanted after being corrected by a Republican. Dunning School historians thought Johnson the greatest lawyer in the Senate. He had, after all, convinced the Supreme Court as the victorious lawyer in Dred Scott that the Constitution forbade bans on slavery in American territories, prohibited freed slaves from becoming citizens of the United States and regarded African-Americans as having no rights white American citizens were obligated to respect. Johnson was one of many Democrats who continued to maintain after the passage of the Thirteenth and Fourteenth Amendments that the United States was committed to a white man's government. These sentiments, the Dunning School thought, made Johnson a brilliant lawyer. Contemporary historians disagree. Jackson when writing or signing opinions might consider finding a different authority on the meaning of the post-Civil War Amendments.
We are confident that Justice Jackson—along with each of her eight Supreme Court colleagues—is fully capable of understanding the "foundations" of "white supremacy," and Jackson can decide for herself which authorities are persuasive.
We, Blackman and Tillman, are both realists. We have real doubts whether our amicus brief will convince any single Justice to vote differently than that Justice would otherwise have voted. Likewise, we doubt our publications, taken separately or collectively, will likely influence any one or more Justices to vote differently than they would otherwise have voted. By contrast, as to Graber's Balkinization post, we think it much more likely to move Justice Jackson into the "Trump" camp and towards the "President is not an officer 'of' or 'under' the United States" position than anything we have written or are likely to write in the future.
