Justice Jackson's Questioning in Voting Rights Case Shows History Won't be Left to Court's Right Wing

The Supreme Court’s conservative supermajority often rely on “originalism,” professing to apply the Constitution as they believe the founders intended—and did so last term to issue rulings eroding Americans’ rights to abortion and gun control. On Tuesday, during her second day of arguments as a Supreme Court justice, Ketanji Brown Jackson applied this same originalist approach in an area where her conservative colleagues avoid it. In a case out of Alabama that threatens to gut critical protections for voters of color, she delivered a history lesson on the original purpose of the 14th Amendment—laying out the background behind the clause to explain why it actually supports robust enforcement of voting rights.

In oral arguments in a case called Merrill v. Milligan, Alabama argued that the 14th Amendment, passed in 1868 to ensure citizenship and equality under the law for people freed from slavery, is in conflict with the Voting Rights Act, which requires drawing political maps with race in mind, in order to give minority groups often clustered in particular regions an equal shot at political participation.

Alabama’s contention is that the Equal Protection Clause of the 14th Amendment is in tension with this element of the Voting Rights Act: The 14th Amendment mandates race blindness while the VRA requires taking race into account. As Justice Amy Coney Barrett said in summarizing Alabama’s arguments, the 14th Amendment is a rock, the VRA is a hard place, and Alabama is caught in between. This contention is a key one that Alabama is relying on to bring a case that could force the country to essentially abandon the VRA, one of its best tools to fight discrimination and facilitate political equality. 

Enter Justice Jackson. She countered Alabama’s arguments by explaining why the 14th Amendment and the VRA are not in conflict—thanks to originalism. “I don’t think that the historical record establishes that the Founders believed that race neutrality or race blindness was required,” she said. The 1866 Civil Rights Act said that Black citizens would have the same rights as white citizens. The 14th Amendment helped to make that a more permanent reality—but enshrining equality among races is not the same thing as mandating blindness to race. The amendment “was drafted to give a constitutional foundation for a piece of legislation that was designed to make people who had less rights and less opportunity equal to white citizens.” The Voting Rights Act, she continued, is doing exactly that.