Justice Ketanji Brown Jackson gave a forceful performance in defense of the race-conscious history of the 14th Amendment and the Voting Rights Act on Tuesday, her second day hearing arguments on the Supreme Court.
In the case of Merrill v. Milligan, Alabama is asking the court to overturn decades of precedent allowing a limited consideration of race to enable racial minorities to obtain equal political representation in redistricting.
The state argues that the equal protection clause of the Constitution’s 14th Amendment is interpreted as race-neutral, and so any attempt to consider race in redistricting would violate the equal protection of white voters. The court should therefore adopt a race-blind test when considering whether a state should be required under the Voting Rights Act to draw districts in which most people are racial minorities, Alabama says.
Arguments in favor of constitutional colorblindness have been in vogue for decades among conservative jurists, as it works to decimate race-conscious laws and policies like affirmative action and 1965′s Voting Rights Act.
But Jackson, who was nominated by President Joe Biden in February to replace the retiring Justice Stephen Breyer, told Alabama and the court that an original reading of the 1868 adoption of the 14th Amendment, which the Voting Rights Act is meant to operationalize, was anything but colorblind.
Jackson stated that she did not believe race being “taken into account ... necessarily creates an equal protection problem.” Instead, she looked to “the history and traditions of the Constitution” and “what the framers and the founders thought about.”
“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,” Jackson said.
The original intent of the 14th Amendment can be found in legislative history and debates from the post-Civil War period of Reconstruction. According to Jackson, the 14th Amendment was adopted during this time “to ensure that people who had been discriminated against, the 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, and that report says that the entire point of the amendment was to secure rights of the freed former slaves,” Jackson said.
Justice Ketanji Brown Jackson argued that the history of the 14th Amendment and Voting Rights Act showed that they were "race-conscious" efforts. (Photo: Anna Moneymaker via Getty Images)
She quoted an 1866 speech by Republican Rep. Thaddeus Stevens of Pennsylvania, indicating that the purpose of the 14th Amendment was to halt the ongoing deprivation of rights and equality from Black men and women across the former Confederate states.
“Unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen,” Stevens had said when introducing the amendment.
“That’s not a race-neutral or race-blind idea, in terms of the remedy,” Jackson argued.
The 14th Amendment arose from the failure of the Civil Rights Act of 1866 to protect the equal rights of the formerly enslaved, Jackson said. The force of the constitution had to back that law for it to function properly. And so Congress passed the 14th Amendment to specifically protect the equal rights of Black people.
“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,” Jackson said.
At every step of the way, a consciousness of race underpinned the adoption of the 14th Amendment. The same is true of the Voting Rights Act, passed in the wake of the bloody 1965 march that the Rev. Martin Luther King Jr. led from Selma to Montgomery. That law was designed to put legislative heft behind the 14th Amendment.
Jackson’s originalist turn flips a common approach of conservative jurists — who have long justified their decisions with such arguments — against them. It also pokes at the bad history used by some justices in landmark cases this year, like Justice Samuel Alito’s inaccurate recounting of abortion law in overturning Roe v. Wade or Justice Clarence Thomas’ gun rights decision in New York State Rifle & Pistol Association Inc. v. Bruen.
It further highlights that history is still at play for laws before the court today. The same Alabama community that was denied equal rights in 1865 and marched for voting rights in 1965 is yet again being denied equal representation now.
A transformation of the Voting Rights Act into a race-neutral law, as Alabama is seeking, would roll back that community’s progress toward equality. Such a policy could even lead to the “biggest decline in Black and Latino representation in generations,” according to Harvard Law School professor Nicholas Stephanopoulos.
This article originally appeared on HuffPost and has been updated.