Ketanji Jackson eviscerated Clarence Thomas’ ‘colorblind Constitution’ fantasy

The Supreme Court ruled Tuesday that the 14th Amendment’s birthright citizenship clause does, in fact, apply to all people born in the United States. Only five justices reached that conclusion — a much closer decision than it should have been. (The sixth, Brett Kavanaugh, joined the majority on purely statutory grounds.) The primary dissent from Justice Clarence Thomas accused his colleagues of expanding the meaning of a clause narrowly tailored to help newly emancipated Black Americans.  

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The dissent was yet another bit of ahistorical storytelling from Thomas, which Justice Ketanji Brown Jackson was simply not willing to abide. Though Jackson joined Chief Justice John Robert’s majority opinion defending the constitutionality of universal birthright citizenship, she also filed her own concurring opinion on the case. In 20 pages, the most junior justice on the bench provided a tour de force of narrative history to counter her oldest colleague’s claims.

Jackson has long used the history and context behind the drafting of the Constitution and its amendments as an intellectual counterweight to so-called “originalist” legal scholars. From their standpoint, laws must only be interpreted as their drafters intended.

Soon after her confirmation in 2022, Jackson explained during a hearing on a case involving the Voting Rights Act that, counter to her conservative colleagues’ claims, there was no justification for reading the Reconstruction Amendments, ratified after the Civil War, as being blind to race. As she explained at the time: “[W]hen I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.”

Jackson has continued to press that viewpoint even as Thomas and Justice Samuel Alito have worked to tear down many of the protections Congress passed over the years to prevent discrimination against minorities. The two men have crafted an informal doctrine that, in essence, says any law passed specifically addressing race is unconstitutional under the 14th Amendment. In a case last month on the so-called “shadow docket” of emergency petitions, the court’s conservatives gave a nod to “our colorblind Constitution” in allowing Alabama to eliminate a congressional district held by a Black representative.

With the birthright citizenship clause, though, Thomas found the rare exception. He wrote that the court’s ruling “adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.” In other words, the 14th Amendment was only meant to deal with making sure formerly enslaved Blacks were granted citizenship and nobody else. Anyone who is not “domiciled” in the U.S., including undocumented immigrants, doesn’t fall under that aegis in Thomas’ view.

In her concurrence, Jackson wiped the floor with Thomas’ blatant cherry-picking of history. “The Court’s conception of a color-blind Constitution and the Government’s (and principal dissent’s) cramped, group-specific reading of the Citizenship Clause are two sides of the same coin, stemming from a basic misunderstanding of the relevant history,” she wrote.

Meetings of freed Blacks before and during the Civil War came together to produce the “political and intellectual scaffolding” that would be incorporated into the 14th Amendment and, much later, the Black Civil Rights Movement, Jackson noted. In the attendees’ discussions, there was little doubt that they were already Americans, albeit ones deprived of their rights.