During oral arguments Tuesday at the U.S. Supreme Court, Associate Justice Ketanji Brown Jackson gave her right-wing brethren a much-needed history lesson on voting rights.
The case before the high court is Merrill v. Merrigan, which challenges Section 2 of Voting Rights Act. A lower court ruling struck down an Alabama legislative map which is considered to be discriminatory to people of color who live in the state.
Justice Jackson weighed in, making it clear that she isn’t going to sit quietly and let conservatives strike down more of the Voting Rights Act.
“I don’t think that we can assume that just because race is taken into account that that necessarily creates an equal protection problem, 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.”
Indeed, those two amendments, which were ratified after the Civil War, were meant to protect the rights of black citizens who had once been enslaved in Confederate states, Jackson continued, and she supported her assertion with statements made by the very legislators who crafted them.
“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. 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.'”
But Justice Jackson was far from finished reminding her colleagues of why such laws are necessary today just as they were during Reconstruction.
“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. 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.”
Jackson concluded her comments by eviscerating the argument being made attorneys for the state of Alabama:
“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? 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.”
