Is Justice Jackson an Originalist? Evidence from the Alabama Voting Rights Oral Argument
by Michael C. Dorf
During Tuesday's oral argument in Merrill v. Milligan, Justice Jackson made an originalist move to resist the core contention of the Alabama Solicitor General, Edmund LaCour. He asked the Court to hold that in order to meet their initial burden of production in challenging a state's redistricting plan under Section 2 of the Voting Rights Act (VRA), the plaintiffs must come forward with an alternative map that: (a) provides minority voters with a greater opportunity to elect representatives of their choosing; (b) respects traditional districting criteria (such as compactness, contiguity, and preservation of political units); and (c) does all of that without expressly considering race. Move (c) was the critical one. As various Justices (especially Kagan) and US Solicitor General Prelogar noted, a requirement of race-neutrality as part of the prima facie case would depart from past precedent construing so-called Gingles step 1 (so-named for the case of Thornburg v. Gingles).
LaCour had two primary responses. First, he tried--mostly unsuccessfully--to say that Gingles step 1 and the subsequent cases already contain or at least do not rule out a requirement of race-neutrality in the construction of the plaintiffs' alternative map. Second, he contended that if the state itself would be constitutionally forbidden from making race the "predominant factor" in drawing its maps (as the Court's cases say), then it makes little sense to allow VRA plaintiffs to satisfy their prima facie burden by doing so. Some Justices and lawyers pushed back by pointing to precedents and highlighting the difference between a prima facie case and the ultimate grounds for decision. Others--especially Justice Alito--seemed quite sympathetic to LaCour's argument.
Justice Jackson pushed back on LaCour's argument in a more fundamental way. She said that the Constitution would not be an obstacle to the state itself using race to draw a map with two majority-minority districts (rather than the one such district drawn by Alabama) because the Constitution does not require race neutrality. Why not? Because the framers and ratifiers of the Fourteenth and Fifteenth Amendments intended and expected that they would allow for expressly race-based remedies for racial subordination.
Justice Jackson's originalist argument may feel exhilarating, as it hoists the conservatives by their own petard. It's a kind of constitutional jujitsu. Nonetheless, liberal originalism has the same vices as conservative originalism. And as I explain below, it won't work.
First, though, let me give credit where credit is due. Justice Jackson is right about the history. University of Washington Law Professor Eric Schnapper delivered the definitive evidence in a 1985 article in the Virginia Law Review. The abstract says (and the article details that:)
From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were enacted concurrently with the fourteenth amendment and were supported by the same legislators who favored the constitutional guarantee of equal protection.
To be sure, Justice Jackson did not refer specifically to the programs Schnapper identified in his article. Her principal example of a contemporaneous statute was the Civil Rights Act of 1866, which does not contain specifically race-based remedies (although its references to the Freedmen's Bureau hint at Congress's acceptance of such remedies). Still, Justice Jackson's historical point is sound. The framers of the Reconstruction Amendments did not think they were forbidding race-based remedies for racial subordination because they contemporaneously adopted such race-based remedies.
But this line of reasoning proves too much. The framers of the Reconstruction Amendments did not think they were forbidding racially segregated schools because they (more or less) contemporaneously provided for racially segregated schools in the District of Columbia and seemed unperturbed by the fact that the viewing gallery in Congress at the time was racially segregated. Does it follow that Brown v. Board of Education is wrong?
Likewise, the framers of the Reconstruction Amendments did not think they were forbidding much if any sex discrimination because they authorized sex discrimination in Section 2 of the Fourteenth Amendment itself. Does Justice Jackson therefore think that Frontiero v. Richardson and the other modern sex discrimination precedents are wrong? Does it follow that the nineteenth century history that Justice Alito cites in Dobbs v. Jackson Women's Health Org. forecloses an argument that abortion restrictions deny women equal protection?
Self-described originalists typically attempt to reconcile the modern landmarks with their methodology by favoring the original semantic content of the words the framers used over their intentions and expectations with respect to particular concrete cases. I'm hardly the only constitutional scholar (though I am one such scholar) to have noted that this move "saves" originalism only by rendering it essentially indistinguishable from living Constitutionalism. So if the original public meaning of--as opposed to the framers' concrete intentions and expectations regarding--"equal protection" is sufficiently capacious to invalidate racially segregated schools and most forms of sex discrimination (including abortion restrictions), then it is also sufficiently capacious to encompass a principle of color-blindness.
That's not to say that the Constitution should be construed to require color-blindness. My view (and Justice Jackson's view) is that it should not be. However, that's not simply because the framers and ratifiers of the Fourteenth Amendment intended and expected that it would allow expressly race-based remedial measures. That historical fact is at most a starting point for giving effect to the open-ended language in light of contemporary circumstances and values.
Accordingly, I hope Justice Jackson wasn't endorsing intentions-and-expectations originalism across the board. Maybe she was endorsing it only with respect to novel questions, so that settled matters like the unconstitutionality of racial segregation and most sex discrimination would be left undisturbed in virtue of stare decisis. After all, Justice Jackson might say, Gingles and the subsequent VRA cases reject the requirement of race neutrality at step 1 that LaCour was promoting; thus, in order for Alabama to prevail on LaCour's theory, the Court would need to accept his novel approach; and while stare decisis preserves old non-originalist precedents, it doesn't help in establishing novel propositions.
But that distinction doesn't work here, because the proposition that Justice Jackson herself is advancing--that the Constitution does not presumptively require race-neutrality in districting where Congress or the states aim to ameliorate racial discrimination in voting--is itself contrary to precedent. The line of cases originating with Shaw v. Reno pretty clearly rejects the position Justice Jackson was advancing (as LaCour said during the oral argument). One could say that the Shaw line of cases contradicts the intentions and expectations of the framers of the Reconstruction Amendments, but if that's a sufficient ground for discarding Shaw and its progeny, it's also a sufficient ground for discarding Brown and Frontiero.
Hold on. One might think that even if originalism is badly flawed, the conservatives embrace it, so liberals who want to persuade conservatives need to make originalist arguments. Maybe Justice Jackson's embrace of originalism is strategic. Maybe she reasons that in the best of all possible worlds she could construe the Constitution using other methods, but to be relevant to the conversation on a Court with a conservative super-majority, she needs to play the originalist game.
There is recent precedent for this sort of if-you-can't-beat-em-join-em approach. In statutory cases, Justice Kagan sometimes writes in a highly textualist style, no doubt to win the votes of her conservative colleagues.
Yet whatever the track record of liberal textualism in statutory cases, liberal originalism in high-stakes constitutional cases seems doomed to fail. The conservative Justices have repeatedly demonstrated a willingness to embrace or abandon originalist arguments opportunistically. On such deeply political matters as race and voting, ideology, not methodology, is determinative.
Notwithstanding all of the foregoing, I would applaud Justice Jackson's use of the Reconstruction history if its aim were to point out the hypocrisy of the conservatives. Justices like Thomas (in NYS Rifle & Pistol v. Bruen) and Alito (in Dobbs) invoke the specific intentions and expectations of the framers when they believe the history supports conservative results but read the constitutional language as open-ended and capacious when they want to overcome those specific intentions and expectations (as they do with respect to color-blindness and in many other contexts, including their ahistorical reading of the First Amendment in campaign finance cases).
The difficulty is that at least during Tuesday's oral argument Justice Jackson appeared to embrace intentions-and-expectations originalism for its own sake, not as a means of exposing her colleagues' hypocrisy.
But maybe any assessment is premature. This is, after all, Justice Jackson's first week hearing oral arguments as a SCOTUS Justice. Perhaps over time she will move towards a version of original-public-meaning originalism that is effectively living Constitutionalism. Or perhaps she values history as an important starting point for constitutional interpretation but not as a dispositive end point. As Justice Jackson continues to settle into her new role, I would urge her to avoid playing by the rules of her conservative colleagues who profess originalism, even for liberal ends. Theirs is a sucker's game.