Photo: Ketanji Brown Jackson (2016-2022) at Loeb House at Harvard University.
By Hassan Kanu, Reuters
(Reuters) – The newest U.S. Supreme Court justice made waves in one of her first days on the bench when she cited legislative history from the 1800s to point out that it’s permissible to consider race when drawing electoral maps.
Justice Kentanji Brown Jackson said on Oct. 4 that the Voting Rights Act was enacted explicitly to protect minority voting rights and is based on race-conscious Constitutional amendments.
It’s clear that “the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way,” Jackson said, pushing back against conservatives’ long-running argument that the Constitution is “color-blind.”
The statements caused a stir even though Jackson was simply stating the obvious – largely because the court’s conservatives generally do not meaningfully discuss the history of race.
More importantly, the comments put the case in its proper context and brought the heart of the matter to the fore: Why shouldn’t race be considered when drawing U.S. congressional district maps, given our long-running history of state-backed, racist voter suppression and housing segregation?
Jackson’s point was a response to a radical argument made by Alabama in a racial gerrymandering lawsuit brought by Black voters and advocacy groups against the state.
State Solicitor General Edmund LaCour has argued that race can’t be used as a factor to identify an appropriate majority-minority congressional district because racial classifications — even benign or remedial ones — are inherently discriminatory and unconstitutional.
The Alabama State Attorney General’s office did not respond to a request for comment. LaCour did not immediately respond to a request for comment.
The core of the argument, to put it plainly, is the myth of reverse racism: that race-conscious policies to redress existing inequality are actually just another form of pernicious discrimination, or anti-white racism.
It’s the same notion behind pending cases seeking to end race-conscious admissions policies at colleges, which the court will hear on Oct. 31. And some justices, including Chief Justice John Roberts, have long been proponents. Roberts ruled against a voluntary school desegregation plan in a 2007 case, writing famously that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Justices Samuel Alito and Clarence Thomas have also been consistently hostile toward policies to remedy past or existing race discrimination. And, questions during oral arguments in the Alabama case indicate that justices Amy Coney Barrett and Brett Kavanaugh similarly subscribe to the reverse-discrimination myth. (To be clear, there is no empirical evidence that white Americans suffer from discrimination or that white Alabamians would be disadvantaged if there was an additional majority-Black district in the state, which is 27% African-American.).
Jackson’s history lesson made a fairly obvious point. There is no debate among historians about why the Voting Rights Act of 1965 was passed, and neither is there disagreement as to why the Reconstruction Amendments that the statute is designed to enforce were enacted after slavery and the civil war. The answer is almost self-evident.
Alexander Keyssar, a historian and professor at the Harvard Kennedy School of Government, told me that Jackson “stated something that was obviously true, but was a needed rhetorical corrective.” Keyssar has documented the history of American suffrage in several books.
I spoke with two other historians who specialize in elections and have testified as expert witnesses in a number of seminal voting rights cases. Vernon Burton is a professor of history and computer science at Clemson University. Peyton McCrary is a lecturer at George Washington University and was the in-house historian on voting rights litigation in the Justice Department’s Civil Rights Division for 26 years.
All three agreed that Jackson’s characterization of the history of the constitutional and legislative history of voting rights was obviously accurate. They also said there is no legitimate dispute among historians over whether the Constitution takes race into account.
Still, the moment was striking and powerfully symbolic because the first Black woman on the high court was looking to historical sources and the founders’ understanding, the approach conservative justices say they favor, to point out a flagrant contradiction in their approach to a Constitutional provision that was quite plainly meant to protect minority Americans’ rights.
For example, Keyssar and Burton pointed out that the court’s conservatives also made a variety of false historical claims to support the recent ruling rescinding women’s right to an abortion, even though the American Historical Association and the Organization of American Historians filed a brief laying out the relevant history. (I pointed out just one inaccurate aspect of the historical narrative in that ruling in a previous column.)
The same misreading of history occurred in the court’s opinions expanding gun rights, as Justice Stephen Breyer noted. He criticized the court’s decision in October, noting that his conservative colleagues had missed the prevailing interpretations from the country’s foremost historians and linguists in a previous, landmark gun rights case. Several years later, those experts informed the court in briefs that they “had gotten the history wrong,” including a conclusion that English Bill of Rights protected an individual right to own guns for self defense, Breyer wrote.
Burton, at Clemson, said that the 13th through 15th Amendments are as much a part of the Constitution as the 1st and 2nd, “and yet the originalists and textualists read the latter as broadly as they can, while reading the others really narrowly.” He added that “Jackson’s comments exposed the illogic of the originalist reading when it comes to race and the Reconstruction Amendments, compared to Amendments concerning guns and religion” for example.
Indeed, the court is apparently looking to change the law in a case in which its application should be straightforward.
The case against Alabama is a “slam dunk” under current law, Justice Elena Kagan said during oral arguments. The lower court also said the case was an “easy” one, Kagan added.
Even Roberts has said that the initial ruling against Alabama had “no apparent errors.”
Still, the court seems intent on rewriting the law to make it harder to prove race discrimination — apparently because of some justices’ belief in the myth of reverse racism, and without regard to overwhelming evidence that Alabama and other states are escalating their age-old efforts to keep minorities from the ballot box.