Supreme Court nominee Ketanji Brown Jackson smiles during a meeting with Sen. Tommy Tuberville, R-Ala., in his office at the Capitol in Washington, Tuesday, March 29, 2022. (AP Photo/J. Scott Applewhite)

Of the many reasons to support Judge Ketanji Brown Jackson’s nomination to the Supreme Court, an often overlooked one is her recognition of voting as an individual fundamental right. If she follows through in her rulings, that understanding will make her instantly better than many of the current justices.

During Jackson’s confirmation hearings, California Democratic Senator Alex Padilla asked Jackson about her views on the Supreme Court’s role in protecting the right to vote—and, therefore, our democracy. Her response was poignant: “The right to vote is protected by our Constitution,” she told Padilla, a former secretary of state whose job required him to oversee California’s elections.

Jackson’s statement should be uncontroversial. But several conservative justices have highlighted (in Bush v. Gore and other decisions) that the Constitution doesn’t explicitly confer the right to vote. These justices have devalued the individual right to vote by focusing on a state’s desire to run elections however they want. That approach often leaves voters behind by approving restrictive rules in the name of election integrity, even when there are no real integrity concerns. The conservative justices have apparently forgotten that the Court has firmly located the right to vote within the Fourteenth Amendment’s equal protection clause. In addition, the Constitution explicitly forbids states from denying or abridging the right to vote on the basis of certain characteristics, including race, sex, inability to pay a poll tax, or being over the age of 18.

At the hearing, Jackson elaborated: “The Constitution makes clear that no one is to be discriminated against in terms of their exercise of voting. And the Congress has used its constitutional authority to enact many statutes that are aimed at voting protection.” The judge then allowed that “there are also … laws that relate to ensuring that there is not only voting access but ensuring that [there] isn’t fraud in terms of voting.” Most importantly, the judge acknowledged that the Supreme Court has recognized the right to vote as a “fundamental right.” Such fundamental rights demand robust protection against state encroachment. If voting is a fundamental right, the states must offer an extremely strong rationale for abridging the right to vote. Otherwise, it won’t pass constitutional scrutiny.

Unfortunately, many of the current justices do not share this view. Their rulings have failed to protect voters, instead unduly deferring to state voting rules. In the lead-up to the 2020 election, numerous district courts and courts of appeals issued rulings to ease voting restrictions due to the pandemic, only to have the Supreme Court reverse those decisions. Using various rationales regarding deference to state legislatures and the timing of the lawsuits (the so-called Purcell principle), the Court’s majority was clear that it is no fan of the individual right to vote. Further, the Court has issued rulings that lowered judicial scrutiny for reviewing limits on the right to vote, gutted the protections of the Voting Rights Act, and made it harder for voting rights advocates to win their claims. At almost every turn, the Court has been hostile to voting rights.

Even Justice Stephen Breyer, whom Jackson has been nominated to replace and for whom she clerked, has a bland voting rights record. Last week, the Court issued an unsigned order rejecting a redistricting map imposed by the Wisconsin Supreme Court, which would have increased minority representation, a key goal of the Voting Rights Act. In this “shadow docket” ruling, the Court seemed to narrow the standard for protecting minority voting rights. Only Justices Elena Kagan and Sonia Sotomayor, who have been vocal against the Court’s hostile voting rights jurisprudence, noted their dissent—meaning that Breyer either agreed with the majority or silently dissented without publicly recording his vote. That apathetic approach is no way to treat the Supreme Court majority’s assault on voting rights.

To be fair, Breyer has joined others’ dissents in cases that harmed voters, but he has not been a bold voice in this area: For instance, he issued a tepid dissent in a 2008 voting rights case, Crawford v. Marion County Election Board. In Crawford, a group of voters and the Indiana Democratic Party challenged the state’s stringent voter ID law, arguing that it violated their constitutional right to vote. In a splintered opinion, the Court refused to strike down the state’s ID requirement, saying that the challengers had not proved that it would violate the Constitution. In his dissent, Breyer wrote that Indiana had not justified its law in that case. He added, however, that photo ID laws could be constitutional so long as they don’t harm too many voters. (Another liberal-leaning justice, the late John Paul Stevens, wrote the primary opinion that refused to invalidate Indiana’s law, accepting at face value the state’s asserted interests in protecting voter fraud—even though the state produced no evidence of actual fraud or any connection between photo ID requirements and election security.) Assuming she stays true to her views about the fundamental importance of the right to vote, Jackson would join Kagan and Sotomayor as a strong voice on these issues, not a restrained one like Breyer and Stevens.

Of course, we can’t predict how Jackson will rule on any given case or issue. In her opening statement at her confirmation hearings, the 51-year-old jurist pledged to “decide cases from a neutral posture.” Like most nominees, she consistently reaffirmed her fidelity to fairness and precedent. And she hasn’t issued any major voting rights decisions as a district court or court of appeals judge. Justice Amy Coney Barrett also noted that the right to vote is “fundamental” during her confirmation hearings in 2020. Yet she has consistently joined the Court’s conservative wing in failing to protect voting rights. It’s one thing to repeat the platitude of voting as a fundamental right; it’s another to put it into practice when states infringe the franchise. 

With our electoral institutions in peril, the Supreme Court must vigorously protect the right to vote. Once confirmed (something that appears all but certain), Jackson won’t change the ideological balance on the Court, but hopefully she will join Sotomayor and Kagan in a unified voice that promotes the utmost respect for the most important right in our democracy. 

Joshua Douglas

Follow Joshua on Twitter @JoshuaADouglas. is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com.