Supreme Court Justice Ketanji Brown Jackson argues the framers of the 14th Amendment adopted it “in a race-conscious way,” a position some legal experts say is subject to debate.
Jackson, the first black woman on the Supreme Court, began her first two days on the nine-member bench by speaking more than any other justices, in addition to a full four-minute statement in which she said the 14th Amendment used “race-conscious” remedies to make freedmen equal to white citizens. The issue at hand involved a challenge to Alabama‘s 2021 congressional district map, which a lower court held was a racial gerrymander because it only contained one majority-black district out of the state’s seven.
“I don’t think we can assume that just because race is taken into account, that that necessarily creates an equal protection problem,” Jackson said during oral arguments Tuesday in the case Merrill v. Milligan.
“Because I understood that we looked at the history and traditions of the Constitution and what the framers and 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,” Jackson added.
Jackson cited a quote from a legislator who introduced the 14th Amendment and explained that it was enacted to give a constitutional basis to the Civil Rights Act of 1866 that was “designed to make people who had less opportunity and less rights equal to white citizens.”
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Manhattan Institute senior fellow and director of constitutional studies Ilya Shapiro told the Washington Examiner on Wednesday that while the “freed slaves were a large component of who the Civil Rights Act of ’66 and the 14th Amendment were meant to help,” the totality of either measure applies to inequality as a broader concept.
“I’m not sure the evidence is as clear cut as Justice Jackson made it out to be that it was because they were black rather than because they were being treated differently or because of their disadvantage from having been enslaved,” Shapiro said.
Although some news outlets were quick to praise the so-called progressive originalism by the most junior justice on display during Tuesday’s arguments, other commentators, including Ed Whelan of the Ethics and Public Policy Center, were left confused and skeptical of Jackson’s analysis.
Whelan invoked University of San Diego School of Law professor Michael Rappaport’s writings in “Originalism and the Colorblind Constitution,” a report that underscores critical challenges to Justices Antonin Scalia and Clarence Thomas‘s belief that the Constitution forbids government affirmative action.
For years, many conservative high court justices have maintained that the Constitution is “colorblind” and prevents any consideration of race, while some scholars believed the 1865 and 1866 Freedmen’s Bureau acts, which were designed to provide care and protections to displaced Southerners, including newly freed African Americans, proves that the Equal Protection Clause does not necessarily require colorblindness.
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But in Whelan’s words, Jackson’s analysis does not go far enough to “touch on the critical questions of what counts as a race-conscious remedy and when such a remedy is permissible,” he wrote for the National Review.
Jackson’s view of the 14th Amendment is likely to come into play in at least two more cases this term, including whether to end affirmative action in college admissions and whether to strike down a portion of a law that issues preference to Native American families seeking to adopt Native American children.
