The Future of Progressive Originalism: Justice Ketanji Brown Jackson’s Interpretation of the Constitution

During her confirmation hearings in March 2022, Justice Jackson introduced herself to Congress as an originalist. [1] Legal originalism is a doctrine of judicial interpretation that follows the Constitution as it was initially intended to be understood at the time it was written. This doctrine is often associated with the Court’s more conservative justices, such as Justices Antonio Scalia and Clarence Thomas, who have used it to argue against abortion and gun rights. However, under Justice Jackson’s interpretation, originalism has taken on a new form—one that is lauded for its progressivism. 

On October 4, 2022, Justice Ketanji Brown Jackson, in her second day as a Supreme Court Justice, heard arguments from Merrill v. Milligan, an upcoming case concerning the Voting Rights Act (VRA). The public had eagerly anticipated learning Justice Jackson’s legal approach following her confirmation, particularly on civil rights and voting rights issues. The hearing for Merrill v. Milligan offered an opportunity for the country to witness her legal methods. [2] Jackson’s questions for the appellant during the hearing strongly emphasized her progressive originalist stance, a stand that could significantly impact future Court decisions on voting rights, affirmative action, and more broadly, the contention over race-blindness versus race-consciousness in the Constitution.

The VRA, signed into law in 1965 by President Lyndon B. Johnson, has faced several challenges by conservative forces in recent years. The bill was designed to overcome legal barriers at the federal and state levels that barred African Americans from exercising their Fifteenth Amendment rights to vote.  However, in the past few years, the Court has attempted to curtail the far-reaching power of the VRA. [3] The Supreme Court examined the voting rights case Shelby County v. Holder (2013), which held that Section 4(b) of the VRA was unconstitutional. [4] Section 4(b) delineated the coverage formula, which assessed whether a state maintained a “test or device” restricting the opportunity to vote. “Fully covered states,” where less than 50 percent of citizens of voting age were registered to vote in the 1964 election, were subject to the special provisions outlined in Section 5. [5] In Shelby County, the Court struck down Section 4(b), holding that the coverage formula imposed impermissible burdens that no longer applied to the current voting conditions in Shelby County, Alabama. Although the Court did not invalidate Section 5, the jurisdiction under this section became void without Section 4(b). In her dissent, Justice Ruth Bader Ginsburg disagreed with the Court’s ruling—which would affect nine states and numerous counties—on the basis that it would render the law ineffective in fighting racial gerrymandering. She was not mistaken, for immediately after the decision, Texas declared the implementation of a voter identification law, as its redistricting maps no longer required federal approval. [6] By declaring Section 4(b) and Section 5 (virtually) to be unconstitutional, the Court dismantled an important formula for the federal government to use in identifying jurisdictions with problematic histories of discrimination based on race.  Brnovich v. Democratic National Committee (2021) further curbed the ability of minority groups to challenge voting restrictions, as the Supreme Court upheld two Arizona voting regulations.  The first, known as the out-of-precinct policy (OOP), is a statute requirement that out-of-precinct ballots be entirely discarded, including votes which could have been casted outside of the state.  The second, the ballot collection ban, bars anyone but a voter’s family member or caregiver from returning early ballots for someone else. [7] The upcoming case of Merrill v. Milligan has put the VRA and voting rights issues back on the table once again, possibly allowing the conservative majority of the Court to uphold a gerrymandered congressional map drawn by Alabama lawmakers.

The ruling in Merrill will determine whether Alabama’s 2021 redistricting plan for its U.S. House seats violate Section 2 of the VRA, which bans any voting procedure that results in a “denial or abridgement of the rights of any citizen of the United States to vote on account of race.” [8] Following the 2020 census, the state of Alabama created a redistricting plan for its seats in the U.S. House of Representatives, with one of the districts being a majority-Black district. Voters and several organizations challenged the map, arguing that the state illegally packed Black voters into one single district and divided other Black voters across other districts. They maintained that the map minimized the number of districts in which Black voters can elect their candidates, violating Section 2 of the VRA. A district court agreed with the challengers and granted a preliminary injunction, which ordered the state to draw a new map. Alabama then asked the Supreme Court to freeze the injunction, which the Court did by a 5-4 decision. [9]

On October 4, the justices heard an appeal of the ruling on its merits. In the hearing, the appellant, represented by Alabama’s Solicitor General Edmund G. LaCour Jr, raised the argument that the VRA was meant to solely cover intentional discrimination on the basis of race. The appellant argued that the act was aimed at preventing discrimination, but “plaintiffs would transform that statute into one that requires racial discrimination in districting and carries us further from the goal of a political system in which race no longer matters.” [10] He relied on the argument that the Constitution was designed and should be implemented to be race-neutral, devoid of all forms of racial discrimination. They asserted that the plaintiffs, who argued that Section 2 of the VRA required Alabama to replace its map, wanted to institute a “racially gerrymandered plan maximizing the number of majority-minority districts.” [11] 

Justice Jackson employed progressive originalist rhetoric to respond to the appellant’s claims and reasoned that the Fourteenth Amendment was intended by their framers to be race-conscious instead of race-neutral. She argued that, in the post-Civil War reconstruction era,the Amendment was drafted for the purpose of ensuring the freedom of people who had been discriminated against.  The framers “recognized that… people, based on their race, were being treated unequally. [The Fourteenth Amendment] was drafted to give 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.” [12] Furthermore, Justice Jackson cited the Report of the Joint Committee on Reconstruction from 1866, which stated that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.” [13] Indeed, when examining the language of these documents and the Fourteenth Amendment, it is evident that the Constitution was not intended to be race-neutral. The Fourteenth Amendment states that “all persons born or naturalized in the United States… are citizens” of the country, and that no state could “deny to any person within its jurisdiction the equal protection of the laws.”[14] The Equal Protection Clause of the Fourteenth Amendment, following an originalist interpretation, is undoubtedly race-conscious.

Although the text refers to “any person” to be protected by the law, it clearly points towards the discrimination by Confederate states against the “hated Freedman,” who, despite their de jure emancipation from slavery, were still likely to be oppressed. The framers of the Fourteenth Amendment likely recognized that only white male citizens enjoyed the protection of the laws, and they were committed to granting African Americans the same rights. The usage of “any person” in the amendment underscores their intent to welcome African Americans as citizens of the United States, abandoning the idea that only white people should be considered citizens. Therefore, as Justice Jackson stated, Section 2 of the VRA does not violate the Constitution, because its purpose is in accordance with the race-conscious intention of the framers of the Fourteenth Amendment. On the other hand, if the VRA became race-neutral law, it would violate the Constitution, as it would directly contradict the aforementioned intentions of the framers. 

Justice Jackson’s progressive originalist arguments offer liberals in the country a new perspective on analyzing race-consciousness in the Constitution.  Her use of a progressive originalist framework counters the commonly understood form of originalism employed by those like former Justice Scalia and Justice Thomas. By reading the Constitution in a race-conscious manner, the ideologically liberal Justices could argue that voting rights of minority groups should be protected, as intended by the architects of the Fourteenth Amendment.  

In the upcoming 2022-2023 Supreme Court term, the justices will decide not only the voting rights case Merrill v. Milligan, but also affirmative action cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. [15] Race has been and will continue to be at the center of American politics, and the distinct notion of progressive originalism put forth by Justice Jackson will be a powerful weapon for marginalized communities to employ in the ongoing fight for racial equality and civil rights.

Edited by Muna Ali

Sources:

[1] Adam Liptak, “Justice Jackson Joins the Supreme Court, and the Debate Over Originalism,” New York Times, October 10, 2022, https://www.nytimes.com/2022/10/10/us/politics/jackson-alito-kagan-supreme-court-originalism.html.

[2] Evan Turiano, “Justice Jackson Offers Democrats a Road Map for Securing Equal Rights,” Washington Post, October 10, 2022, https://www.washingtonpost.com/made-by-history/2022/10/10/originalism-ketanji-brown-jackson-supreme-court/.

[3] Voting Rights Act of 1965,” History, November 4, 2022, https://www.history.com/topics/black-history/voting-rights-act. 

[4] Shelby County v. Holder, 579 US 529 (2013). 

[5] Voting Rights Act of 1965, Public Law 89-110, U.S. Statutes at Large 79 (1965): 438-439.

[6] Adam Liptak, “Supreme Court Invalidates Key Part of Voting Rights Act,” New York Times, June 25, 2013, https://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html.

[7] Brnovich v. Democratic National Committee, 594 US__(2021).

[8] Voting Rights Act of 1965, Public Law 89-110, U.S. Statutes at Large 79 (1965): 437-445. 

[9] Adam Liptak, “Supreme Court Leans Toward Alabama in Voting Rights Dispute,” New York Times, October 4, 2022, https://www.nytimes.com/2022/10/04/us/alabama-supreme-court-voting-rights-act.html. 

[10] “Merrill v. Milligan Oral Argument Transcript,” 121: 20-24, October 4, 2022. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1086_f204.pdf. 

[11] “Merrill v. Milligan Oral Argument Transcript,” 4: 19-21, October 4, 2022. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1086_f204.pdf. 

[12] “Merrill v. Milligan Oral Argument Transcript,” 59: 4-16, October 4, 2022. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1086_f204.pdf. 

[13] “Merrill v. Milligan Oral Argument Transcript,” 58: 14-17, October 4, 2022. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1086_f204.pdf. 

[14] U.S. Const. amend. XIV, §1.
[15] Mark Walsh, “Affirmative Actions Cases Lead What Could Prove Another Momentous Supreme Court Term,” Education Week, September 22, 2022, https://www.edweek.org/policy-politics/affirmative-action-cases-lead-what-could-prove-another-momentous-supreme-court-term/2022/09.