Justice Jackson’s Hypocrisy

Justice Ketanji Brown Jackson may have a problem being consistent across cases when her politics align with one case but not another. Compare her dissent Tuesday in Libby v. Fecteau with her statements in oral argument during Allen v. Milligan.

In Libby, the Supreme Court granted emergency relief to Laurel Libby, a conservative member of the Maine House of Representatives. The Democrat majority barred Libby from voting on any bills because she spoke out against letting a boy who identified as transgender compete on a girls sports team. Ever since the Democrats barred her from voting, her constituents have had no functional representation in the state Legislature.

Without emergency relief from the Supreme Court, their representative is forced to sit on the sidelines while bills are voted on.

Jackson voted against granting Libby emergency relief because she has “not asserted that there are any significant votes scheduled in the coming weeks [or] that there are any upcoming votes in which Libby’s participation would impact the outcome.”

In other words, Libby’s exclusion from voting in the Maine House of Representatives deserves emergency relief only if she can show that relief would change the result of a vote. As Justin Evan Smith writes at “Ordered Liberty,” Jackson’s reasoning implies that “political participation is only meaningful if its outcome determinative.”

That’s “deeply corrosive” to our republican form of government because it would protect the outcomes of the representative process but not our right to participate in that process. But the Constitution very clearly protects our rights to participate in governance, even—especially—if we don’t win.

Put simply, Jackson’s reasoning implies that “minority voices don’t count.”

This is wrong on the merits, but it’s also wrong according to Jackson herself. In another case brought by people whose politics align with Jackson’s, she took the opposite view.

The case was Allen v. Milligan, a racial gerrymandering case, where black Alabamians argued that the Voting Rights Act required the state to create an additional majority-black congressional district. During oral argument, Jackson slammed the state of Alabama for arguing that the Constitution requires the state to be colorblind when it creates congressional districts.

In her view, the 14th Amendment permits states to rely on race and the Voting Rights Act requires them to rely on race when they create districts because that’s the only way to identify minorities “who have less opportunity and less ability to participate” and to “ensure that that’s remedied.”

Note the right that she is trying to protect. It’s not the right of a minority group to control the state’s congressional delegation or the right to control the tie-breaking vote on any bill. Those would violate the principle of majority rule. Rather, the right that she’s trying to protect is minority groups’ right to participate in the political process, no matter that they wouldn’t control the outcome of any vote.

Set aside the fact that she thinks this right can only be protected by race discrimination—she’s wrong there—but note how clearly she sees that the right at issue is the right to participate even if you won’t control the outcome.

What Jackson saw so clearly in Milligan, she lost sight of in Libby.

When a minority in Maine—conservatives who oppose boys in girls’ sports—asked Jackson to defend their right to participate in the political process, she said it wasn’t important enough for the court’s emergency docket. It would only be important enough if their representative would control the outcome of a particular vote.

Jackson took a correct and expansive view of that right in Milligan, but an erroneous and crimped view of that right in Libby. Why? We can’t know her mind, but the fact that she supports racial preferences and can’t answer the question “What is a woman?” suggests one answer. Charity, however, requires us to avoid that answer unless no better one appears. Let’s hope Jackson provides one soon.