Justice Jackson’s Argument against Race Neutrality Is Faux Originalism

During yesterday’s oral argument in the consolidated cases Merrill v. Milligan and Merrill v. Caster, an eyebrow-raising interpretation of the Reconstruction amendments came from Justice Ketanji Brown Jackson. At issue is whether Alabama’s new congressional map violates Section Two of the Voting Rights Act.

A district-court decision by a three-judge panel finding such a violation and ordering a new map to be drawn was stayed by a 5–4 margin of the Supreme Court earlier this year. Alabama’s map made only minor changes to the previous district lines, and it contained one majority-black district (out of seven total), as had the last several maps stretching back decades. The question is whether the Voting Rights Act requires a second majority-minority district, a requirement which as Alabama argues “is virtually impossible” to satisfy “unless traditional principles” of district-drawing “yield to race-based line-drawing from the start.”

During yesterday’s oral argument in the consolidated cases Merrill v. Milligan and Merrill v. Caster, an eyebrow-raising interpretation of the Reconstruction amendments came from Justice Ketanji Brown Jackson. At issue is whether Alabama’s new congressional map violates Section Two of the Voting Rights Act.

A district-court decision by a three-judge panel finding such a violation and ordering a new map to be drawn was stayed by a 5–4 margin of the Supreme Court earlier this year. Alabama’s map made only minor changes to the previous district lines, and it contained one majority-black district (out of seven total), as had the last several maps stretching back decades. The question is whether the Voting Rights Act requires a second majority-minority district, a requirement which as Alabama argues “is virtually impossible” to satisfy “unless traditional principles” of district-drawing “yield to race-based line-drawing from the start.”