Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.
If people thought the seemingly quiet, always smiling, professorial-looking, new Supreme Court justice, Ketanji Brown Jackson, would spend her first few days on the nation’s high court being silent, boy, did they get it wrong.
On Monday, she weighed in on an environmental protection wetlands case right out of the gate. She was the fourth justice to ask questions that morning. But it was Tuesday, day two, that really set off the legal fireworks. The case before the court, Merrill v. Milligan, is about a yearlong dispute over Alabama’s congressional districts map. Of the seven congressional districts drawn last year by the GOP-controlled state legislature, only one is majority Black in a state with a Black population of nearly 27 percent. The redistricting appeared to violate the Voting Rights Act, specifically section 2, which guarantees minority groups equal access to the electoral process. So earlier this year, a lower court ordered the state to create a second majority-Black congressional district, but the Supreme Court blocked the redistricting while the case moved forward. The question before the court is how much should race be a factor when drawing those legislative maps.
This is not the first time the Supreme Court has heard cases targeting the Voting Rights Act of 1965. In the 2013 landmark decision for Shelby County v. Holder, the court held that Section 5 and section 4(b)—provisions that required certain states and local governments with a history of voting rights violations during the Jim Crow era to obtain federal preclearance before implementing any changes to their voting laws or practices—were unconstitutional. The impact of that decision was swift as several states began passing voting ID laws without the burden of getting government approval. In 2021 in another section 2 case, Brnovich v. Democratic National Committee, the Supreme Court upheld restrictions in an Arizona law that threw out ballots cast in the wrong precinct and put limits on who could collect absentee ballots. A lower court had ruled the restrictions discriminated against Black people and Native Americans.
As Merrill v. Milligan was being argued on Tuesday, Justice Jackson—unlike her elder, more conservative Black male counterpart on the court, Justice Clarence Thomas—did not just sit and listen. Quite the opposite. She engaged in vigorous discussion and debate. The historic first Black female justice showed up and showed out. She dove right in and had no issue whatsoever schooling lawyers and her fellow justices on the historical significance of the 14th and 15th Amendments as they applied to the Voting Rights Act.
Justice Jackson was skillfully strategic when she said, “the entire point of the 14th Amendment was to secure the rights of the freed former slaves.” As a result, she wondered aloud, how could the state be barred from considering race when deciding whether more majority-Black districts should be drawn or not?
The brilliance of what Justice Jackson did was she turned the tables on so-called “originalists”—judges who believe they should look to the Constitution’s original meaning in interpreting its provisions. A majority of the current court believes in a so-called “textualist” or “originalist” reading of the Constitution. It’s what justices like Thomas, Samuel Alito, Amy Coney Barrett and Neil Gorsuch live for.
More progressive judges—like famed Chief Justice Earl Warren, for example—take the view that the Constitution lives, breathes and expands from the original document. Thank God for Warren’s view in Brown v. Board of Education, as he lobbied the court to be unanimous in its rejection of Jim Crow segregation in dismantling the “separate but equal” doctrine. The Brown court was clear that separate can never be equal and was therefore not constitutional per the 14th Amendment.
In this current case, Justice Jackson took on a similar tone. Quoting from those who drafted the 14th and 15th Amendments, Jackson emphasized that the entire legislative and policy purpose of the “Reconstruction Amendments” could be summed up in the quote, “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.” She then emphatically punctuated the air with this declaration, “That’s not a race-neutral or race-blind idea.”
This is why representation matters. Having the voice of a super smart, savvy and knowledgeable Black woman on the Supreme Court matters. She has that keen insight and precision about what it means to live Black in America. It is a unique lens by which she can offer constitutional analysis and incisive questioning of the lawyers who come before the court.
Jackson put the court’s conservative justices on notice that there is a new justice in town, and she is ready to debate the doctrine of originalism. She did just that on Tuesday, as she masterfully went back to the original text, its history and tradition to make a case for why judges who interpret the 14th Amendment must be color conscious to ensure that we make right the wrongs of our past. To say the Constitution is “color-blind,” as Justice Harlan suggested in his lone dissenting opinion in Plessy vs. Ferguson 1896, is well-meaning but wrong. Because America has never been colorblind—not since the day slavery began on the shores of Virginia in 1619, and not the day America declared its freedom in 1776, with a third of the nation’s population enslaved.
Alabama is arguing its approach to redistricting is race-neutral, but it harkens back to Jim Crow. “Race-neutral” is code for “reverse discrimination”—which is the nuance Justice Jackson took immediate exception to. She summed it up best: “The framers themselves adopted the amendments…in a race-conscious way.” She is absolutely right. For my two cents, I think this court was badly in need of Justice Jackson’s intellect, bravery and knowledge of our nation’s racial history, and a fearless willingness to outmaneuver conservatives on their own strict constructionist playing field.
Sophia A. Nelson is a contributing editor for theGrio. Nelson is a TV commentator and is the author of “The Woman Code: Powerful Keys to Unlock,” “Black Women Redefined.”
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