Whomever Joe Biden nominates for the Supreme Court will not change its current ideological split, but a black, female Justice would certainly give internal politics a shake-up, writes Hayden Thorne
United States Supreme Court Justice Stephen Breyer will retire from the bench in June, at the end of the court’s current term. Breyer is 83 and has served on the court with distinction for 27 years since he was nominated by Bill Clinton in 1994.
His retirement will allow President Joe Biden the chance to nominate a replacement before the November midterms, while the Democratic Party maintains a narrow majority in the Senate – greatly increasing the chances of having Biden’s choice confirmed.
Breyer’s retirement has clearly been timed to avoid the sort of situation that arose with Ruth Bader Ginsburg’s untimely death in 2020, which allowed then-President Donald Trump to replace her with the conservative Amy Coney Barrett. Breyer’s decision is strategic and should allow the court’s liberal wing to at least hold its ground with a three-member minority.
Associate Justice Stephen Breyer will leave the court with a strong reputation as a pragmatic liberal.
Breyer’s career followed a remarkably similar trajectory to many of those who have served on the bench – undergraduate degrees from Stanford and Oxford, law at Harvard before a clerkship with then-Supreme Court Justice Arthur Goldberg, followed by important stints in government, and as a professor at Harvard.
He is one of the least well-known of the current bench – not prone to either explosive dissent or radical opinions. He has, nevertheless, been an important voice in support of access to abortion – he wrote the crucial plurality opinion striking down Louisiana’s attempts to restrict access in the 2020 June Medical Services case.
He has also repeatedly voted in support of voting rights, against partisan gerrymandering – and for many years his pragmatism served as a crucial counterweight to the originalism of Justice Antonin Scalia. Originalism holds fast to the idea that the US Constitution must be interpreted in line with the original understanding of those who wrote the Constitution.
Before the 2020 election, Biden promised that, if given the chance, he would nominate a black woman to the bench. There is every indication that he intends to keep that promise and the rumour mill is thus working overtime to find the likeliest candidates.
Washington insiders have identified four candidates who appear to be strong possibilities: Leondra Kruger, Ketanji Brown Jackson, Sherrilyn Ifill, and J. Michelle Childs.
It is important to note that all four of these women are absolutely qualified for the role (in many cases, much more qualified than some of the current bench).
Kruger and Brown Jackson both have followed what might be termed the traditional path to the Supreme Court. Kruger graduated from Yale, and Brown Jackson from Harvard (the two dominant law schools). Both held clerkships with Supreme Court Justices (Kruger with John Paul Stevens and Brown Jackson with Breyer – a nice touch!).
Both have also held roles inside and outside government and have important judicial experience. Kruger currently sits on the California Supreme Court while Brown Jackson sits on the Federal Court of Appeals, D.C. Circuit. Both have impeccable credentials and would be worthy nominees.
A slightly more out-of-the-box name that has circulated is that of Sherrilyn Ifill—the current president and director-counsel of the NAACP Legal Defence and Education Fund (LDF). Ifill, educated at NYU School of Law, has worked for the UN Centre for Human Rights, had roles with the American Civil Liberties Union and LDF (the two most important civil liberties/civil rights organisations in the United States), as well as two decades’ experience as a professor at the University of Maryland. She was named one of Time Magazine’s 100 most influential people in the world in 2020 and would follow in the footsteps of another LDF director-counsel: the great Thurgood Marshall.
The fourth name that has come up repeatedly is J. Michelle Childs, a current judge of the US District Court in South Carolina, whose nomination to the US Court of Appeals is already pending before the Senate. Childs was educated at the University of South Carolina and had a distinguished career in private practice as an employment and labour law specialist. Although she has not followed the traditional Harvard/Yale clerkship route, she has a great deal of judicial experience.
Of note, all four of the potential nominees are under 60. Kruger, at 45, is the youngest and would be the youngest nominee since Clarence Thomas in 1991.
What are the implications for the court?
Ultimately, whomever Biden does nominate will not change the Supreme Court’s current ideological split. We will still see a dominant, six-member conservative majority. Biden’s choice will improve the Court’s diversity – but in terms of the big issues forthcoming for the bench (especially abortion), it will not do anything to change the balance of power.
There is a strong likelihood that any of Biden’s rumoured selections would deepen the court’s ideological divide. It is unlikely that any of the potential nominees would fill the more pragmatic role that Breyer has often taken on.
A new liberal voice will likely make the three-strong liberal group more vocal and assertive – and while it won’t change where the votes fall, it should improve the liberal minority’s ability to communicate with the public and challenge the wisdom of the conservative majority.
Whomever Biden does nominate is likely to spend a large portion of their career in the court’s minority – a challenging position for anyone – and will likely need to do a lot of dissenting.
Biden’s selection will reveal much about his intentions for the court. Kruger or Brown Jackson, with their traditional pedigree, might be considered “safe” choices (although it is best to remember the US didn’t appoint its first black justice until 1967, and its first woman until 1981—any black, female Justice would represent a hugely significant moment for the court).
Ifill, and to a lesser extent Child, would represent a much more radical choice. Ifill, in particular, would give the court’s internal politics a real shake-up and that might be no bad thing.