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The Dissenters

Jackson, Kagan, and Sotomayor aren’t letting the Supreme Court go down without a fight

Steamrolled by a right-wing majority twice their size, the liberal bloc is wielding words as weapons to expose the danger of the conservative legal agenda

Photo Illustration.Alex LaSalvia

This month, the nation got its first glimpse at the U.S. Supreme Court’s new liberal minority bloc in action. The alliance consists of three justices, two of whom are virtual veterans of the court with a dozen or more years under their belts, the other whose tenure has just begun. All three are women.

One is a former professor and law school dean, another a former prosecutor, and the third a former public defender. Each is part of a racial, ethnic, or religious minority group. Their backgrounds, personal stories, and paths to the high court are divergent, yet they now form a unique alliance. Far more often than not, they will be dissenters.

And, this term, they came out swinging.

Oral arguments in a challenge to Alabama’s new redistricting map for diluting Black residents’ voting power show how they will work. The stakes are high, which could deal a mortal blow to the already-weakened Voting Rights Act.

“What strikes me about this case is that under our precedent, it’s kind of a slam dunk,” Justice Elena Kagan said to Alabama Solicitor General Edmund LaCour, noting the discriminatory effect of newly drawn maps on Black voters in the state seemed clear cut. For years, Kagan used oral arguments to seek consensus across ideological lines. Understanding the stakes with the court’s conservative supermajority in place, she has had enough of that.

Now, Kagan just tells it like it is.

“Do you agree that the benchmark you propose has never been recognized by this court as the benchmark that’s appropriate in these kinds of cases?” Kagan asked LaCour.

Kagan noted that 27% of Alabama’s population is Black, but only one of its seven congressional districts is majority-minority. If LaCour’s argument wins the day, she noted, there could be none in a state “where there is a long history of racial discrimination.”

That’s when the newest jurist, Justice Ketanji Brown Jackson, came in with a lesson in constitutional originalism. In so doing, she turned on its head the notion that conservatives have a monopoly on focusing on the intent of the U.S. Constitution’s framers to support their arguments.

U.S. Supreme Court justices pose for their official portrait. Constitutional originalism, the theory that constitutional text should be interpreted with the meaning its authors intended in their time, is often used by conservative justices to justify radical rollbacks of rights protections. Justice Ketanji Brown Jackson flipped the script, using originalism and a history lesson to defend 14th Amendment protections against racial discrimination.Alex Wong/Getty Images

LaCour argued the Constitution’s 14th Amendment and the equal protection clause – which both bar discrimination on the basis of race – actually prevent redistricting mapmakers from considering whether the votes of Black residents are diluted through gerrymandering. Then Jackson stepped in with a history lesson: She cited the 1866 report submitted by the Joint Committee on Reconstruction, which led to the drafting of the 14th Amendment.

“When I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race conscious way,” Jackson explained. “That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in the society.”

When LaCour rebutted, saying the 14th Amendment “is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others,” Jackson laid waste to that argument.

“The reason why the 14th Amendment was enacted was to give a constitutional foundation for that kind of effort, for the Civil Rights Act of 1866,” Jackson said. It’s the same foundation for the Voting Rights Act.

During their questioning, the three justices often worked in tandem, tag-teaming and passing the baton to one another to push back against the contention that a race-blind rule for protecting voting rights is what the Constitution requires. At times their questioning was vociferous, with Jackson and Kagan saying more words during the first week of the court’s oral arguments than any other justices. During the voting rights case, Jackson topped 2,000 words, rare for any justice in any argument, let alone a new one. The hot bench at times made it hard for Justice Sonia Sotomayor, usually more vocal, to get a word in.

But when Sotomayor did speak, she made it count.

When Justice Samuel Alito suggested the court set aside consideration of “communities of interest,” areas where voters share common backgrounds and views, Sotomayor made clear she saw what he was doing.

“Justice Alito gave the game away when he said race-neutral means don’t look at community of interest because it’s a proxy for race,” Sotomayor said. “Regrettably, that is what it is in many situations.”

Regrettably, neither Sotomayor, Jackson, nor Kagan will write the opinions that win the day in the most important rulings of the term: These cases will determine the fate of affirmative action, whether state lawmakers can ignore state court rulings on election procedures, and whether private vendors can discriminate against LGBTQ+ people.

Believe that their dissents will be rousing and clear. During live-streamed oral arguments, the new minority bloc will do all it can to signal what is coming. These justices, at least, are putting on full display the fallacy behind some of the arguments their conservative colleagues may embrace.



Kimberly Atkins Stohr is a columnist for the Globe and The Emancipator. She may be reached at kimberly.atkinsstohr@globe.com. Follow her on Twitter @KimberlyEAtkins.