Justice Ketanji Brown Jackson turned the favored tactic of her right-wing peers on its head Tuesday, advancing an originalist argument to support protections for racial minorities.
She made the comments during oral arguments in Merrill v. Milligan, a case that gives the conservative majority the opportunity to gut the Voting Rights Act even further.
In the case, Alabama argues for a “race-neutral” approach to redistricting, a map-making process that would eviscerate what protections remain in the VRA to ensure that the state doesn’t draw districts in a way that dilutes minority communities’ votes.
To counter that, Jackson delved into early American history — sounding an awful lot like her conservative peers in cases like Dobbs, when they used (arguably inaccurate) early history to decide that the Constitution does not include the right to an abortion.
“I don’t think we can assume that, just because race is taken into account, that that necessarily creates an equal protection problem,” she said. “Because I understood that we looked at the history and traditions of the Constitution and what the framers and 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 14th Amendment, the 15th Amendment in a race-conscious way.”
“I looked at the report that was submitted by the Joint Committee on Reconstruction which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves,” she added.
She read out a quote from the legislator who introduced the amendment, and went on to explain that the 14th Amendment was enacted to give a constitutional foundation to the Civil Rights Act of 1866 that was “designed to make people who had less opportunity and less rights equal to white citizens.”
Her argument stood out from those employed by her liberal peers: Justice Elena Kagan focused on real-world effects, tracking the demise of the VRA and grilling Alabama’s solicitor general about whether his theory could create a map with zero majority-minority districts. Justice Sonia Sotomayor pointed out that while the Black belt, a Black-majority region of the state, has been cracked over and over again into multiple districts, predominantly white counties were repeatedly left intact.
In Jackson’s second appearance in oral arguments, she chose to take the new tack: rhetorically beating her conservative peers at their own game.
As Justice Clarence Thomas wrote in a landmark case tearing down a New York gun regulations: “Reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to make difficult empirical judgments.”