The Birthright Citizenship Was Right, But Still Shocking

Justice Jackson’s Concurrence Is the One to Read

I decided not to go into the dissents or even into the weeds of some of the arguments because it’s just not as important as the point above. But I do want to highlight Justice Jackson’s concurring opinion. When a justice “concurs” it means they agree with the majority, but they have something to add.

Justice Jackson writes a concurrence to show that the 13th, 14th, and 15th Amendments, which came after the Civil War and are sometimes called “the Reconstruction Amendments,” were designed to be anti-caste, anti-subordination, and race conscious.

Only Justice Sotomayor signs on to part of this opinion, but it’s meaningful that Justice Jackson is getting this perspective of our history attached to a majority opinion. History and “what did the Founders think at the time” has become infused into the way many of the conservative justices interpret the Constitution (also known as originalism). She is playing that game by showing the history, beliefs, and set of Founders that led to these revolutionary additions to the Constitution.

She also responds directly to the statements her colleagues have been making in recent decisions about the Constitution being color-blind.

She won’t change any of her colleagues’ minds with this writing, but it’s here for the rest of us and for the future.

Thank you for being here! Thank you for your feedback! Thank you for sharing these pieces with others! I appreciate it all, and I’m glad you’re engaging with the downer that is the Supreme Court.

While you’re down here with me, read a little bit about the possibility of term limits on the Supreme Court. Our law shouldn’t depend on when a few important people happen to retire or pass away.