All Hail Justice Ketanji Brown Jackson, Who Came with the Constitutional Receipts

Photo: Bill O’Leary / Washington Post / Getty

Today I wanted to share something important that newly installed Supreme Court Justice Ketanji Brown Jackson said during oral arguments in Merrill v. Milligan, a case about Alabama’s newest Congressional gerrymander.

By way of background, there are seven Congressional districts in the state, but only one of them is now drawn to enable the election of an African American representative, down from two before the redistricting. That is a 14 percent representation rate now, despite the population of the state being 25 percent Black. As a result of the redrawing of district lines, white voters are now in districts where their voting strength simply overpowers the African American vote.

During oral arguments before the Supreme Court on Tuesday, Alabama argued that the districts were drawn using “race neutral” principles, that is, allegedly by not looking at any race when drawing the lines. The state claimed that in light of that, the Voting Rights Act wasn’t triggered because there was no showing of discriminatory intent by Alabama—even though the Act itself says plainly that intent is not a factor in whether the Act should apply, and even though African Americans wound up losing one of their two seats.

The state also argued that the Voting Rights Act violates the Constitution’s guarantee of equal protection of the law under the 14th Amendment. In probing and challenging this argument, Justice Jackson took a page from the conservatives on the Court by going deep into the original intent of the drafters of that amendment, in something some commentators are calling “progressive originalism”—though Justice Jackson herself is not an originalist in any sense that, for example, Justices Thomas and Alito and describe themselves.

To the Alabama Solicitor General, Justice Jackson had this to say and ask. I’m setting it out here in its entirety because it is quite compelling and unique in its approach.

Justice Jackson: I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because 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 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.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in—during the reconstructive—reconstruction period were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, 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 “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That's not—that’s not a race-neutral or race-blind idea in terms of the remedy. And—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, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens.

That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So 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 Fourteenth 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.

So with that as the framing and 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 that's remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and—and background of the Fourteenth Amendment?

If this is how Justice Jackson will be using her seat on the Supreme Court— that is, to hold up a lens to the law, and to lawmakers and judges, and to cite our actual history plainly and factually in response to the cynical and ahistorical warping we have seen from the conservative majority—we have reason to hope that her vision and clarity is what will also be remembered from this difficult period in the Court’s and our nation’s history.