Ketanji Brown Jackson levels long-standing conservative claims against voting laws
Ketanji Brown Jackson (AFP)

U.S. Supreme Court justice Ketanji Brown Jackson on Tuesday took aim at decades' worth of conservative arguments against race-based remedies to voting rights laws.

The newly sworn-in justice laid out her claims during oral arguments in the case, Merrill v. Milligan, challenging Section 2 of the Voting Rights Act, which two judges appointed by Donald Trump previously ruled had been violated by Alabama's legislative map, and Jackson challenged the state's claim that the lower court's interpretation actually resulted in racial discrimination.

"I don't think that we can assume that just because race is taken into account that that necessarily creates an equal protection problem," Jackson began, "because I understood that we looked at the history and traditions of the Constitution and 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 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 Reconstruction period, were actually brought equal to everyone else in society."

Those post-Civil War amendments were explicitly drawn up and ratified to expand and protect the rights of the Black citizens who had been enslaved in Confederate states, Jackson argued, and she backed her claims with statements made by the legislators who wrote and voted on those bills.

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"I looked in 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 argued. "The legislator who introduced that amendment said that, quote, '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 a race-neutral or race-blind idea, in terms of the remedy, 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?" she continued. "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."

"They recognized that there was unequal treatment," Jackson added. "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 14th Amendment came into play. 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."

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"So with that as the framing and the background, I'm trying to understand your position that Section 2, by its plain text is doing that same thing, is saying that you need to identify people in this community who have less opportunity and less ability to participate and ensure that that's remedied, right?" she concluded. "It's a race-conscious effort, as you have indicated. I'm trying to understand why that violates the 14th Amendment, given the history and background of the 14th Amendment."

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