Justice Jackson’s Brilliant Debut
On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.
The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.
Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.
1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;
2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and
3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”
The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:
…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.
Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.
Is that your central argument?
MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.
You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.
He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.
JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.
And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.
I don’t think 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 at 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 Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.
That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth 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 “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 –that’s not a race-neutral or race-blind idea in terms of the remedy. And –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? 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. So they recognized that there was unequal treatment, that 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 Fourteenth Amendment came into play. It was drafted to give a foundational –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.
So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying 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 Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?
The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.
That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:
Not if they’re allowed to sacrifice our principles to come up with their maps.
“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.
1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.
2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?
3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.
4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.
5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.
6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.
Great analysis Ed. It will be interesting to see how the 6 “originalists” Federalist Society justices respond to Justice Jackson’s critique. My guess is with not much honesty.
Jackson’s brilliant intellectual jujitsu will force the majority to torture language and logic even further to justify its opinion. That will need to rally us, since they have the votes. I’m hoping this and future arguments inspire a new, more idealistic generation to go to law school.
But she already seems to have injected a new energy on the minority side–not just her colleagues Sotomayor and Kagan, but many of us avid observers. Thanks, Ed, for keeping that ball rolling. It matters.
I hope this is O.K. to add as it pertains so precisely:
“This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it.”
― Steven Levitsky, How Democracies Die
The Conservative majority doesn’t care about fairness or equal protection. They only care about allowing the GQP to remain in power. It is obvious based upon their decisions of late. The court has lost their legitimacy in my eyes.
“Alabama restricting map”?
A Freudian typo perhaps? ;-)
Serendipity, and I’m tempted to leave it up.
Worse than Nothing; The Dangerous Fallacy of Originalism by Erwin Chemerinsky. He covers the 13th, 14th, and 15th amendment issues in “The hypocrisy problem” chapter.
I consider Originalism to be patently absurd. The notion that courts should rely primarily on the drafter’s intent makes PoC and women second class citizens. To consider original intent and language when PoC and women had zero power in the creation of the laws completely disempowers those groups. To say nothing of the biases that the people drafting something in the 18th century would have and how that would be incorporated in their justifications of their actions results in an inherent injustice.
I always say that if women had power in 1787, abortion would be an enumerated right.
Thank you for this piece.
I choked up a little listening to her.
Jurisprudence is not dead.
Thanks so much Ed for putting this piece up.
I have read a smattering of Brown’s questions the last few days and she gives me great hope in the face of the absurdist conservative viewpoint of the majority.
What makes her inquiry so salient is that it is a powerful anecdote to the poison of originalist extremism, and her minority opinions along with Sotomayor’s are going to give voice to actionable dissent and resistance from the “populari” as resistance to this authoritarian right wing crap grows. It’s going to be harder and harder for garbage opinions like Alito’s on Dobbs to go down with the public, especially when Brown has the ability to show in her dissent opinions what the rule of law can look like when administered with stari decis, authentic originalism and dispassion rather than power grabbing.
Although she sits next to a Federalist Society Mob and prolly won’t be contributing to any important majority opinions any time soon, Brown has power in reminding us, and her fellow jurists, what good and fair law can be.
She’s my little ray of ☀️ right now.
With regard to point 6: Trump compromised every one of his SCOTUS appointees by repeatedly guaranteeing in his campaign for the presidency that he would only appoint anti-choice justices. He has made much of having kept that promise. In their confirmation hearings the nominees squirmed and slithered to avoid owning that they were the very flesh that Trump promised to deliver. Confirmed, they promptly performed as advertised, joining a brutal opinion in Dobbs that thumbs its nose at everyone. And now, SCOTUS is losing its legitimacy with the public and Roberts blames it on our poor sportsmanship. If he is delusional enough to sincerely believe that, then truly he is a sheep among wolves. My money is on ideological expedience and cynicism.
I think that Roberts realized that Dobbs would be a legitimacy killer. That’s why he staked out a “middle ground” where he upheld that law but would not have overruled Roe completely (there is room at 15 weeks to do that). He couldn’t get anybody to go along with that, and he knew right then that their credibility was going down the toilet.
He has to spin it with the public as poor sportsmanship, but he knows better.
Thank you Ed. Yes, bold, bright and brilliant debut for Justice Jackson. A caring, compassionate and conscious woman.
Ed – Thank you for this analysis. There’s not been much written since the oral arguments and your analysis was a great help to a better understanding of what’s at stake here.