Ketanji Brown Jackson Did Something Brilliant and New in Her Biggest Dissent of the Term
Over the past several years, the Supreme Court's conservative supermajority has grown increasingly skilled at manipulating the legal doctrine of “original intent” to secure outcomes beneficial to the Republican Party, as it did many times this term. While progressive jurists haven't been very successful at stanching that bleeding, one justice, Ketanji Brown Jackson, has been particularly adept at laying the groundwork for a future court where originalism will be more than just a cynical tool to achieve conservative ends. At the end of this term, Jackson showed why she's a specialist in this area by brilliantly seeking to expand the scope of whose original intent is seen and considered by the Supreme Court to players who have long been invisible. Specifically, Jackson asked the court to reckon with the views and work of free Black people in antebellum and post-antebellum America when considering the meaning and power of the 14th Amendment. This move was an astonishing corrective to a term drowning in calculated partisan-oriented maneuvering over legitimate judging.
When the Supreme Court's conservative majority essentially gutted a federal statute that enables Americans to sue the federal government when their civil rights are violated as part of a ruling allowing states to defund Planned Parenthood, they leaned into that usual hyper narrow reading of American history, known as originalism . In her dissent of the majority's opinion in Medina v. Planned Parenthood , Jackson surfaces a new way of doing originalism that could one day change the entire legal landscape, as legal and political scholars have noted to Slate.
In Medina , Julie Edwards, a recipient of Medicaid in South Carolina, wanted to receive her medical care from Planned Parenthood but could not because the state had sought to exclude the clinic from its Medicaid program, since, in addition to gynecological services, Planned Parenthood also offers abortions. Edwards argued that's a violation of a landmarkfederal statute known as Section 1983 , which enables Americans to seek relief in federal courts if their constitutional rights are violated. Congress apparently incorporated Section 1983 into Medicaid's spending clause, which gives patients the right to seek medical care from “any provider” who is “qualified to perform” the “services requested.”
When the Supreme Court ruled in favor of South Carolina by affirming that Medicaid's spending clause doesn't establish a clear and unambiguous right to allow private lawsuits for violating Section 1983, Justice Clarence Thomas filed a concurrent opinion describing an intention to strip Section 1983 even further. He argued that the court should look into the ability of Americans to file federal civil rights claims at all, arguing that Section 1983 “originated as a narrow, Reconstruction era statute,” that's being applied in an overly broad way today.
Thomas claimed that at the time when Congress passed Section 1983, he attracted “little attention or debate,” which he argued is further evidenced by the fact that there were only 21 lawsuits decided under the statute in the first 50 years after its enactment. “When courts did face Section 1983 cases, they constructed the statute narrowly,” Thomas wrote.
Jackson called out Thomas' limited reading of American history, noting that he cited only a handful of late 19 th -century lawsuits that mostly had to do with disputes over government pensions and employment. Jackson pointed to other debates happening at the very same time, known as the Colored Conventions . These were political gatherings where Black Americans organized for racial justice while debating the issues of the moment. In so doing, she opened the door for authentic originalists to expand the scope of who the Supreme Court considers—whether it is only the old, dead, white men who held a monopoly on power in early America who counted, or indeed the entire country.
Jackson pointed to the Colored People's Convention of the State of South Carolina in 1865 to show that “rights” were understood more expansively than Thomas claimed: “'Right' is defined to be the just claim, ownership, or lawful title which a person has to anything.”
“That's an interesting use of history,” Jamelle Bouie, New York Times columnist, told Slate's Dahlia Lithwick and Mark Joseph Stern during an Amicus live SCOTUS end-of-term Breakfast Table event. “It's not just looking at what's happening in the legislature and surrounded the people with power, but saying the common understanding encompasses a quite large group of Americans whose voices deserve to be part of the mix.”
Thomas conveniently made his argument solely focused on a narrow group of white men controlling the judiciary, largely unaffected by the civil rights issues of the time. Meanwhile, the Colored Conventions were the very subjects of those issues and were debating their impact, evidenced by petitions that were signed and sent to the very congressional committees that were drafting legislation for a post–Civil War era, including the 14th Amendment. These Black Americans, as Jackson suggests, are just as much part of our nation's “original” history as the white men Thomas cites.
“More caution (and more research) may be warranted before our longstanding precedents in this area can be seriously ballotized or attacked—especially in cases where no party has made such a claim or presented any such argument,” Jackson wrote.
As Bouie notes:
There are these really valuable resources for actually getting a sense of what free Black Americans thought about critical constitutional issues. If you want to know, for example, what free Black Americans thought about the 13th Amendment, they're arguing about it in conventions.
By bringing attention to the Colored Conventions, Jackson is forcing her colleagues to understand the broader context of the post–Civil War era and the environment in which the 14th Amendment was created, something that goes even beyond the Medina decision. “That's why I so appreciate not only that she's willing to do it, but the dexterity with which Justice Jackson is able to mine that history and present it and force it into the conversation with her colleagues,” Sherrilyn Ifill, civil rights lawyer and 14 th Amendment scholar, also told Slate's Amicus.
As Ifill added:
Once you open up the lens of that conversation, then not only does it lead you to look into the record and see that not only were they having Colored Conventions, but those conventions were signing petitions that they were then sending to the committee that was drafting these pieces of legislation and drafting the 14th Amendment. …It also makes you understand the reset that Congress was trying to create with the 14th Amendment.
In raising this history, Ifill notes, Jackson is “pushing back against a conceptual way of thinking about this Second Founding, this restarting of our country after the Civil War.”
While that conceptual way of thinking appears unlikely to have much impact on the thinking of her conservative colleagues, it could pay dividends down the line.
“If you include these voices of Americans and how you're shaping common understanding, you may come to a different outcome,” in these cases, Bouie noted. And, ultimately, the court “may come to a different set of conclusions about what people understood to be the case at the time” and what that means the law is now.
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