The “Reconstruction Amendments” were not intended to be “race-neutral,” or color-blind, according to Supreme Court Justice Ketanji Brown Jackson.

How did she respond?

Jackson used “progressive originalist” methods to disprove claims of “color-blind” solutions to voter discrimination issues at oral arguments in Merrill v. Milligan.

The issue revolves around the redistricting plan in Alabama, where legislators gerrymandered districts so that just one has a majority black population. Despite making up about 27% of the state’s population, the proposed design gives black citizens only 14% of the state’s congressional districts.

The question is whether black voters will ultimately be discriminated against by Alabama’s “race-blind” method of establishing congressional districts.

Jackson stated that the purpose of the Reconstruction Amendments—the 13th, 14th, and 15th Amendments—was to offer a racial-based legal remedy to issues that former slave states would otherwise refuse to embrace after hearing arguments from Alabama Solicitor General Edmund LaCour.

The justice stated, “I don’t believe we can infer that simply because race is taken into consideration that that inevitably causes a difficulty with equal protection.”

“It became evident to me that the founders themselves embraced the Equal Protection Clause, the 14th, and the 15th Amendment in a race-conscious manner,” Jackson said after examining the rationale behind the post-Civil War constitutional changes.

“The Freedman, who had faced discrimination during the Reconstruction era, were, in reality, being brought on par with everyone else in society,” she remarked.

Jackson used the Report of the Joint Committee on Reconstruction, which was created by the same legislators who created the 14th Amendment, to bolster her argument. The paper explains the legal justification for the constitutional safeguards thought necessary in the wake of slavery.

She cited a study that said “the amendment’s sole purpose was to protect the rights of former slaves who had been set free. Unless the Constitution should stop them, the lawmaker who proposed that amendment predicted that those states will all, I fear, maintain this discrimination and crush to kill the loathed Freedman. Regarding the solution, that is not a race-neutral or race-blind notion.”

Jackson went on to say that one reason for the 14th Amendment’s adoption was to provide the Civil Rights Act of 1866 a legal foundation. “It was expressly stated that all people would have the same civil rights as white people. The goal of that law was to guarantee that black citizens would enjoy the same rights as white ones.”