KBJ Makes Bizarre ‘Originalist’ Argument to Justify ‘Race-Conscious’ Policies

KBJ Makes Bizarre ‘Originalist’ Argument to Justify ‘Race-Conscious’ Policies

October 5, 2022

Supreme Court Justice and non-biologist Ketanji Brown Jackson used her second day on the nation’s highest court to make a bizarre “originalist” argument claiming that since post-Civil War Amendments were meant to benefit former slaves, they justify “race-conscious” policies.

The Court heard oral arguments in Merrill v. Milligan, a fight over redistricting boundaries in Alabama. Left-wing groups challenged the new map, arguing that it only guaranteed black voters, 28% of the population, one “majority-minority” district out of seven total.

Alabama argued that there was no way to draw another set of districts to create another “majority-minority” district without violating the 14th Amendment’s Equal Protection Clause, because it would require state legislators to make race the primary boundary factor.

Jackson, who used much of her question time to test her own theories rather than to elucidate responses from counsel, tried to argue that because the legislators who drafted the 13th, 14th, and 15th Amendments after the Civil War had intended to help black people, an originalist interpretation of those amendments would approve the use of race-conscious policies to create equality.

That defies the common understanding of the Equal Protection Clause, and Alabama pointed out that the way the 14th Amendment was meant to help black people was by ending racial discrimination, not by creating new race-based policies. Alabama also argued that the only situation in which the use of race to redraw maps was allowed was when race had been improperly used to draw them.

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