Ketanji Brown Jackson invokes 14th Amendment history during Supreme Court voting rights hearing

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Participating in her second day of oral arguments on Tuesday, Supreme Court Justice Ketanji Brown Jackson tangled with Alabama’s solicitor general in a case challenging Section 2 of the Voting Rights Act, which bars racial discrimination in voting policies.

The justices agreed to review a lower court’s opinion that found Alabama’s redrawn 2021 congressional map was likely a violation of the law because it includes only one majority Black district out of seven, despite the fact that Black voters account for 27% of the state’s voting population.

In January, the three-judge panel — including two district judges appointed by former President Donald Trump — ordered a new map to be drawn with an additional majority Black district, which likely would have gained Democrats a seat in the U.S. House of Representatives this fall. The order was frozen by the Supreme Court, which agreed to hear the state’s appeal.

Ketanji Brown Jackson speaks into microphones from a podium at the White House.
Ketanji Brown Jackson delivers remarks at the White House on April 8 after her confirmation to the Supreme Court. (Kent Nishimura/Los Angeles Times via Getty Images)

In court Tuesday, Edmund LaCour, Alabama’s solicitor general, argued that the map was “race-neutral,” and that the order for a new map would put the state at odds with the Equal Protection Clause of the Constitution because it would have to prioritize race in redistricting.

Jackson wondered why LaCour would make such a claim given that framers of the 14th Amendment — which guaranteed equal protection to all people, including former slaves — did not intend it to be “race-neutral or race-blind.”

“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.

She said the framers themselves adopted the Equal Protection Clause “in a race-conscious way.”

“The entire point of the amendment was to secure rights of the freed former slaves,” Jackson said.

Jackson, the court’s newest justice and first Black woman ever to sit on its bench, then cited the Civil Rights Act of 1866, “which specifically stated that Black citizens would have the same civil rights as enjoyed by white citizens.”

“I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said. “That’s the point of that act, to make sure that the other citizens, the Black citizens, would have the same [rights] as the white citizens.”

The case is one of nine the Supreme Court has agreed to hear involving a range of major issues, including affirmative action, the rights of LGBTQ people and election laws.

A decision is expected to come later this term.