During her second day on the bench, Supreme Court Justice Ketanji Brown Jackson made a bizarre “originalist” argument in order to suggest that race-based gerrymandering and other race-based policies don’t violate the Constitution.
The Biden nominee made the stunning claim during arguments in the case of Merrill v. Milligan, which involves a dispute over newly created district lines in Alabama. Leftist groups insist the new map discriminates against black voters for not giving them more than one “majority-minority” district out of seven when they make up 28% of the state’s population.
But the state of Alabama argued that creating a second “majority-minority” district would violate the Constitution’s Equal Protection Clause because it would have put state legislators in the position to make a district primarily on the basis of race.
But Jackson had a bizarre take on the issue. According to her, the 13th, 14th, and 15th Amendments, which were drafted after the Civil War, were designed to help black people, which she believes undermines the argument that the framers of the Constitution were opposed to race-conscious policies.
“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 — at what the framers and the founders thought about — and when I drill 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, that they were, in fact, trying to ensure that people who had been discriminated against, the freedmen, during the reconstructed construction period were actually brought equal to everyone else in the society.”
Jackson insisted that her research led her to conclude that the 14th Amendment was not race-neutral or race-blind. She insisted that the 14th Amendment “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 [become] equal to white citizens.”
Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work. pic.twitter.com/aCXAq2CnJu
— Mark Joseph Stern (@mjs_DC) October 4, 2022
Jackson’s interpretation of the Equal Protection Clause truly defies common understanding of its intent by relying on a twisted originalist argument to support race-based policies. The purpose of the Equal Protection Clause is to ensure that all citizens have the guaranteed right to equal protection by law and has been used to end racially discriminatory policies.
Judicial Crisis Network President Carrie Severino points out that Jackson is “not quite correct.”
“The understanding at the time was, was not so much about we need to be race-conscious, but we need to be conscious about correcting the harms against specific people,” Severino said.
Constitutional scholar Ed Whelan similarly disputed the logic of Jackson’s remarks.
“By her own account, the very purpose of the Civil Rights Act of 1866 was ‘to make sure that the other citizens, the black citizens, would have the same [civil rights] as the white citizens.’ It was designed to remedy a situation in which ‘people, based on their race, were being treated unequally’ by the states. And the 14th Amendment had the same goal,” he wrote.
There’s no reason to be surprised at Jackson’s nonsensical position or her lame attempt at aligning her perspective with originalism. In the end, she proved herself to be exactly what conservatives feared she would be.