Recently, the Wall Street Journal, never shy about twisting language to maintain a status quo that serves its core audience at the expense of less wealthy or powerful Americans, ran an editorial taking new Supreme Court Justice Ketanji Brown Jackson to task. Her offense? Jackson had the temerity to object to the notion that the 15th Amendment, which guarantees “equal protection of the laws,” could not be used to protect Black citizens from unequal treatment because it would cause unequal treatment to white people.
The amendment, she noted, was not “colorblind,” but rather was created specifically to protect freed slaves, from whom most Black Americans descend. “The framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” she said. Jackson further irritated the Journal by asserting that hers was the “originalist” interpretation of the amendment.
The case in question was Merrill v. Milligan, an equal rights challenge to Alabama’s 2021 congressional map that shoehorned Black voters into a single district, leaving six to be dominated by white voters – this in a state where more than one quarter of the population is African American. In January, the three judges on a District Court panel, two of whom were Donald Trump appointees, had ruled unanimously that Alabama’s plan violated Section 2 of the 1965 Voting Rights Act and ordered the state to draw a new map. In February, however, the Supreme Court (in a 5-4 decision) stayed the ruling until it could hear the case itself. This allowed Alabama to conduct primaries using the disputed district map. The court only took the case up in October, long after it could have any practical impact on the November midterms.
