In a series of exchanges with Alabama’s solicitor general, US Supreme Court Justice Ketanji Brown Jackson delivered a powerful history lesson on the explicit racial justice foundations of Reconstruction-era constitutional amendments, aiming to undermine the state’s defence of its congressional maps that a federal court has determined are racially discriminatory.
On her second day on the nine-member court, Justice Jackson argued that the 13th, 14th and 15th Amendments – drafted in the bloody aftermath of the US Civil War – were written with the explicit purpose of providing equal opportunity and rights to formerly enslaved people.
A long-standing perspective among conservative justices and right-wing legal groups contends that such civil rights provisions are “colour blind” and prohibit race-conscious remedies to combat discrimination – despite the constitutional “originalism” behind them.
The Alabama case before the court involves a newly drafted congressional map that packs most of the state’s Black residents into a single district, out of seven, despite Black residents making up 27 per cent of the state’s population.
In January, a lower court determined that the map significantly dilutes Black residents’ political power and ordered the state to draw new political boundaries that would create at least two districts in which Black voters would be more likely to elect a representative that more closely resembles the state’s demographics.
The state appealed the decision and the Supreme Court froze the ruling, teeing up yet another challenge to what remains of the Voting Rights Act and the issue of racial gerrymandering.
The Voting Rights Act was drafted to prevent that kind of race-based dilution of Black voters. But Alabama attorneys have argued the opposite – that considering race to redraw political boundaries would mark an unconstitutional consideration of “racial targets” and “race-based sorting”, in violation of the 14th Amendment’s equal protection clause.
If the Supreme Court agrees with Alabama’s argument and subverts a crucial section of the Voting Right Act, political opportunity for people of colour will be radically reduced, delivering an especially critical blow to a state with a long history of racist violence and discrimination.
Section 2 of the Voting Rights Act prohibits voting laws and election policies from discriminating on the basis of race. The state’s suggestion that “race should play no role whatsoever” to determine whether redistricting plans violate Section 2 would “rewrite” the law and “overturn decades of settled precedent,” according to the map’s challengers.
Attorneys for President Joe Biden’s administration argue that Section 2 of the Voting Rights Act should be considered when “pervasive racial politics would otherwise deny minority voters equal electoral opportunities.”
The map’s challengers says that is precisely what is at stake in Alabama.
No Black candidate has ever been elected to Congress in Alabama from a majority-white district.
“There is nothing race-neutral about Alabama’s map,” said Deuel Ross, senior Counsel with the NAACP Legal Defense and Educational Fund.
“Section 2 [of the Voting Rights Act] is not an intent test or about putting on racial blinders. It is about equal opportunity – opportunity that Alabama’s map denies Black voters,” he told the court on 4 October.
‘I’m trying to understand your position’
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Justice Jackson argued.
“We looked at the history and traditions of the Constitution, at what the framers and the 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.”
“The amendments were written to ensure that people who had been discriminated against … during the Reconstruction period were actually brought equal to everyone else in the society,” she said.
She also pointed to the Joint Committee on Reconstruction of 1866, which determined “that the entire point of the [14th Amendment] was to secure rights of the freed former slaves,” she added.
“The legislator who introduced that amendment said that ‘unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.’ That’s not a race-neutral or race-blind idea in terms of the remedy,” she said.
That amendment was intended to provide a constitutional foundation for the Civil Rights Act of 1866, “which specifically stated that [Black] citizens would have the same civil rights as enjoyed by white citizens,” Justice Jackson added.
“So, with that as the framing and the background, I’m trying to understand your position,” she told Mr LaCour.
Section 2 of the Voting Rights Act “is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort,” Justice Jackson said.
“I’m trying to understand why that violates the 14th Amendment, given the history and background of the Fourteenth Amendment,” she added.
‘A disservice to Black Alabamians’
In its decision earlier this year, the Supreme Court voted 5-4 to let the Republican-dominated state legislature’s map stand for now.
Chief Justice John Roberts joined the three liberal justices against the conservative majority’s decision.
In her furious dissent, liberal Justice Elena Kagan said the decision “does a disservice to Black Alabamians” who “have had their electoral power diminished – in violation of a law this Court once knew to buttress all of American democracy.”
She slammed the majority for issuing another significant decision with far-reaching impacts in a “disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.”
The January ruling in US District Court said that “Black voters have less opportunity than other [Alabama residents] to elect candidates of their choice to Congress.”
“Any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it,” the judges wrote.
The case stems from a lawsuit filed on behalf of Greater Birmingham Ministries, Alabama State Conference of the NAACP, and a group of voters represented by the American Civil Liberties Union and NAACP Legal Defense and Educational Fund, among others.
A group of Black voters filed a similar lawsuit in 2018 and lost.
The state’s sole majority Black district – currently represented by Democratic US Rep Terri Sewell – has a voting population that is 60 per cent Black, roughly one-third of the state’s Black population.
The state’s remaining Black population is “cracked” across the First, Second and Third congressional districts – all represented by Republicans.