It was the final round of questions and Ketanji Brown Jackson, the newest member of the US supreme court, had one final thing to ask.
For nearly an hour, Edmund LaCour, Alabama’s solicitor general, had been laying out the case for why his state’s congressional map did not discriminate against Black voters. The plaintiffs in the case, Merrill v Milligan, showed it was possible to draw a map with two majority-Black districts instead of one, but LaCour argued that was only possible if a mapmaker went out of their way to consider race. He argued that was inconsistent with the US constitution’s 14th amendment, which guarantees all citizens, regardless of their skin color, are treated equally under the law.
Jackson quickly started taking a scalpel to his argument. She was confused, she said, as to why considering race created a problem under the 14th amendment.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” she said. History, she said, showed that the founders and framers adopted the 14th amendment “in a race-conscious way.
“That they were, in fact, trying to ensure that people who had been discriminated against, the freed men in – during the reconstructive – reconstruction period were actually brought equal to everyone else in the society.”
She continued for nearly four minutes uninterrupted, laying out historical evidence and analysis supporting the idea that the 14th amendment was designed to be race-conscious. By the time she finished speaking, it appeared to be one of the longest speeches ever made during an oral argument, according to Adam Feldman, who tracks supreme court statistics at Empirical Scotus. By the end of the argument, the rookie justice had spoken more than any of her colleagues on the bench, Feldman noted.
In just her first few oral arguments, Jackson has wasted little time making her presence felt – earning praise from court observers for asking sharp questions.
“I think it’s really clear she’s just going to be a force to be reckoned with,” said Leah Litman, a law professor at the University of Michigan. “Both in questioning positions that she’s skeptical of, but also in providing support for lawyers when they’re being subject to hostile questioning.”
A day before the Alabama case, Jackson asked her first questions from the bench in Sackett v EPA, a high-stakes environmental case dealing with the Clean Water Act. When a lawyer representing the challengers said that certain language in the statute was “unenlightening” Jackson cut in and said “let me try to bring some enlightenment to it”.
She proceeded to press the lawyer, Damien Schiff, to defend his argument that the Clean Water Act does not cover wetlands near a major waterway, only those that abut it, Bloomberg reported. She prodded Schiff on why Congress would make such a distinction “when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”
It was the kind of questioning that showed a clear difference between the styles of Jackson and Stephen Breyer, the justice she replaced on the bench, wrote Mark Stern, who covers the supreme court for Slate. “Breyer had a habit of bringing arguments to a standstill with endless, convoluted questions that failed to move the needle. So far with Jackson, there’s no self-indulgent wheel-spinning, just rapid-fire questions that cut to the heart of the case.”
Jackson’s decision to use history in her legal reasoning could also have big consequences for the court, even if it doesn’t ultimately affect how the justices vote. In the Alabama case, Jackson’s turn to the historical understanding of the 14th amendment was also significant. For years, the court’s conservative majority has moved to embrace the idea of a “color-blind” constitution. But Jackson’s question in the Alabama case used originalism – the preferred method of constitutional interpretation of conservatives – to call into question the idea of a race-blind 14th amendment.
“It was just a really frontal challenge to the narrative that the court has spun without really engaging with the relevant history. To have her do so so evocatively and clearly was just quite striking,” Litman said.
Some conservatives have already taken issue with Jackson’s analysis. And even though she may not win over any of the court’s conservative justices in the Alabama case, forcing them to confront the history was meaningful, said Nicholas Stephanopolous, a Harvard law professor who co-authored an amicus brief in support of the challengers in the case.
“Jackson’s doing an enormous positive service by spotlighting that originalism doesn’t necessarily lead to stereotypically conservative outcomes,” he said. “I don’t think it’s gonna switch votes on the court anytime soon. I think it’s useful to undermine the smugness and self-confidence and self-assurance of those who argue for a color-blind constitution.
“Even if it doesn’t win their vote, it’s really good to make them aware of that contradiction. And to install a little humility or doubt about their position. Which they have not expressed in recent writings,” he added.
