Guy-Uriel E. Charles* & Luis E. Fuentes-Rohwer** | 25.5 | Citation: Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, Race, Originialism, and Skepticism, 25 U. Pa. J. Const. L. 1241 (2023).

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The newest Associate Justice of the Supreme Court of the United States, Ketanji Brown Jackson, wasted very little time. The day after she was sworn in as an Associate Justice, she set her sights clearly and directly on the prevailing orthodoxy that reigns over the Court’s race jurisprudence. The case was Allen v. Milligan. The plaintiffs, Black voters, sued the state of Alabama alleging that Alabama’s congressional district map diluted their votes in violation of section 2 of the Voting Rights Act of 1965. Alabama responded that Section 2 was unconstitutional because it compelled the state to take race into when apportioning political power. Race conscious decision-making by the government, Alabama argued, was inconsistent with the colorblind command of the 14th Amendment’s Equal Protection Clause.

As the last inquisitor in the last round of questions before Alabama’s solicitor general would leave the rostrum, Justice Brown Jackson flipped the script. She confessed to being “a little confused” as to why Alabama thought the VRA had to be interpreted in a race-neutral way to be consistent with the Constitution. “[G]iven our normal assessment of the Constitution,” she asked, “why is it that you think that there's a Fourteenth Amendment problem?” More specifically, she continued, we should not assume that “just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought.”

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* Charles J. Ogletree, Jr. Professor of Law, Harvard Law School.

** Professor of Law and Class of 1950 Herman B Wells Endowed Professor, Indiana University Maurer School of Law.