In the decades leading up to the ratification of the Fourteenth Amendment,
Black Americans organized and gathered at more than 600 local and national
conventions across the country.18 There, delegates erected the political
and intellectual scaffolding for the Fourteenth Amendment and, later, for
the Black Civil Rights Movement more generally.19
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Two-hundred-and-fifty years in, Justice Jackson is doing the work that is
needed from our leaders
The
United States needs leaders willing to speak forthrightly about our past
and ambitiously about our future in order to make it through the
treacherous present.
Chris Geidner
Jul 4
READ IN APP
On this Fourth of July, I am thinking about how important it is for the
United States that we have leaders willing to speak forthrightly about our
past and ambitiously about our future in order to make it through the
treacherous present.
On June 30, Justice Ketanji Brown Jackson did both, illustrating perfectly
what is needed from our leaders.
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In the birthright citizenship case, as I covered
earlier this week, Jackson did the work that was needed to put the facts of
history in the record in spite of Justice Clarence Thomas’s effort to the
contrary.
Jackson’s telling of that history in *Trump v. Barbara* was not the hateful
parody of anti-Americanism that the Trump administration insists that
proponents of diversity represent. Instead, it was a beautiful celebration
of the Reconstruction Amendments as “an anticaste, antisubordination reset
for the Nation.”
Her discussion of the Colored Conventions alone — with reference to available
documentation
— was a critical example of how important Jackson’s work on the court is
for the country. After discussing some efforts to encourage freed Black
people to “self-deport” — a hateful phrase that felt very intentionally
used — she moved forward to the effort to “guarantee[] liberty and justice
for all,“ writing:
In the decades leading up to the ratification of the Fourteenth Amendment,
Black Americans organized and gathered at more than 600 local and national
conventions across the country.18 There, delegates erected the political
and intellectual scaffolding for the Fourteenth Amendment and, later, for
the Black Civil Rights Movement more generally.19
[image: 18 See Colored Conventions Project, Conventions Records (Feb. 12,
2025), https://www.coloredconventions.org/about-records/ (archived at
https://perma.cc/3ZD2-3WHS) (collecting “minutes, proceedings, news- paper
articles, speeches, letters, transcripts, and images”); see also M. Sinha,
The Rise and Fall of the Second American Republic: Reconstruc- tion,
1860–1920, p. 158 (2024); J. Fox, The Constitution of Black Aboli- tionism:
Reframing the Second Founding, 23 U. Pa. J. Const. L. 267, 272–334 (2021).
19 See E. Ball, Performing Politics, Creating Community: Antebellum Black
Conventions as Political Rituals in The Colored Conventions Movement: Black
Organizing in the Nineteenth Century (P. Foreman, J. Casey & S. Patterson
eds., 2021), pp. 155–157.]
In doing so — in this brief paragraph alone — Jackson opened a path for all
to greater exploration of this moment through the work of Manisha Sinha
,
James Fox
,
and Erica Bell
.
As I noted earlier this week, she did so throughout her opinion in an
important way for the court and helpful way for all of us.
------------------------------
Jackson’s equally important ability to provide the needed forward-looking
voice was also on display on June 30. In her other opinion that day — in *West
Virginia v. B.P.J.
*
— Jackson showed an awareness of a greater way of living beyond the
anti-transgender spirit that appears to be animating the majority of
justice on the Supreme Court currently.
While the litigation decision in the case over West Virginia’s trans sports
ban not to challenge the definition of “sex” in Title IX as meaning
anything beyond “biological sex” meant that the three Democratic appointees
agreed with the Republican appointees that Becky Pepper-Jackson’s Title IX
challenge to West Virginia’s law failed, Jackson was not done. She authored
a three-page solo opinion to add an additional, important discussion into
the mix.
After describing that conclusion regarding the Title IX challenge in the
*B.P.J.* case, she wrote, “But there is reason to doubt the soundness of
the concession that Title IX’s reference to ‘sex’ means *only* sex assigned
at birth.“
It was an essential comment, and the three paragraphs that followed spoke
ambitiously about what the United States could be if its laws were, as she
wrote, “properly construed.”
Jackson explained that civil rights laws like Title IX are to be construed
“broadly” and that the court has noted that, within the context of sex
discrimination laws, they are aimed “at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes.“
From there, she explained what that means and why it matters in a way that
concluded with a path forward.
[image: The prohibition against stereotyping is difficult to ex- plain
fully by reference to sex assigned at birth. A sex ste- reotype often will
but need not have anything to do with an individual’s sex assigned at
birth. A transgender woman penalized for being perceived as aggressive has
experienced discrimination “on the basis of sex” just as much as a cis-
gender woman has, no matter that the transgender woman’s behavior matches
expectations of her sex assigned at birth. Either way, the institution has
imposed its gen- der-based expectations upon her. And either way, the in-
stitution may have violated Title IX. In short, the majority is wrong to
suggest that the term “sex” in Title IX “cannot plausibly be interpreted to
refer to anything other than biological sex.” Ante, at 10. Title IX makes
room for individuals to live in the gender they choose; it cares not just
about sex assigned at birth but also about individuals’ ability to match
(or not) their gender presentation to their gender identity. Because West
Vir- ginia’s law forces B. P. J. to live—in this case, to play—as a boy
though she is a girl, it might well run afoul of Title IX properly
construed.]
Jackson made clear that even in the midst of this anti-trans moment we can
and must look ambitiously toward a better world.
“Title IX makes room for individuals to live in the gender they choose; it
cares not just about sex assigned at birth but also about individuals’
ability to match (or not) their gender presentation to their gender
identity,” she explained directly.
That was not the view that succeeded this week, but, as Jackson made clear
in *Barbara*, sometimes the most important work takes time.
------------------------------
As one of the two youngest justices on the bench, Jackson is also 25 years
younger than the president. She has made it clear this term repeatedly that
she is regularly not writing for today but, rather, is writing for the
future United States in which she hopes to live.
Two-hundred-and-fifty years into this experiment, Justice Ketanji Brown
Jackson might very well be the exemplar of what this nation can be today
because of the generations of people who learned from all that it wasn’t
and were willing to change. She also appears to be seeking to carry that
lesson forward, learning from the past and charting a more inclusive
future.
This Fourth of July, I can celebrate that.
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