KBJ Goes Originalist on the Fourteenth

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Ketanji Brown Jackson went originalist on the Fourteenth Amendment (and on Alabama's solicitor general) today at oral arguments in Merrill v. Milligan, the VRA Section 2 to challenge to Alabama's congressional district map.

Justice Jackson explained that the Framers of the Fourteenth Amendment intended to allow Congress to use race-based means to overcome racial inequalities . . . and that Congress actually used race-based means in the Civil Rights Act of 1866. (The point came up in response to Alabama's argument that Section 2 plaintiffs can make their case only with a comparator map that itself is race neutral. Justice Jackson pointed out that an original understanding of the Fourteenth Amendment allows Congress to use race-based methods (like a race-based comparator map) to achieve racial equality (like fair congressional districts).)

Originalism is a constitutional interpretive technique that purports to interpret and apply the Constitution based on its original meaning (or understanding, or intent, depending on your brand). It's usually associated with a politically conservative view of the Constitution. (That's why Justice Jackson's progressive invocation today has gotten some attention.)

For more on this, check out the Constitutional Accountability Center's amicus briefs in Merrill and Students for Fair Admissions v. Harvard and UNC (the affirmative action cases). For that matter, check out CAC's work on progressive originalism generally.