by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Carrie Campbell Severino and Frank Scaturro write for National Review Online about the newest U.S. Supreme Court justice’s misreading of history. Justice Ketanji Brown Jackson offered her thoughts about an Alabama redistricting case.
Justice Jackson’s position seems to be that line-drawing based on race is not only permissible but required under the law. Justice Sonia Sotomayor’s comments during argument suggest her agreement on that point.
But Jackson advanced a peculiar understanding of history. She asserted that the Framers adopted the 14th Amendment’s equal-protection clause and the 15th Amendment “in a race-conscious way.” …
… What these historical details do not support is Jackson’s takeaways: “That’s not a race-neutral or race-blind idea in terms of the remedy,” and “I don’t think that the historical record establishes that the Founders believed that race-neutrality or race-blindness was required.” But the record is clear that Congress was working to remedy flagrant racial discrimination under the law — particularly the discrimination of the Black Codes in the former Confederate states, which aimed to relegate those who had been emancipated to a status that closely resembled slavery.
The very remedy employed by Congress to override the Black Codes was the Civil Rights Act of 1866. …
… Even putting aside the whites who received rations from the Bureau, it is clear that benefits targeting formerly enslaved people — in a country where the institution of slavery was race-based — would go to African-American recipients based not on their race, but on their past enslavement. To remedy that was not to create any new racial category in the law.
The debates over the Reconstruction amendments and the laws meant to enforce them are filled with statements by supporters of those measures articulating the intent of abolishing racial distinctions in the law. That included the most prominent supporter in the House of Representatives, Thaddeus Stevens, who, during debate over the Civil Rights Act descrbed as “the genuine proposition . . . the one I love” that “all national and state laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color.”