The Politics of the Supreme Court Shortlist

In September, 2020, when the death of Justice Ruth Bader Ginsburg opened up a seat on the Supreme Court, President Donald Trump said that he expected to name a nominee soon, and specified, “It will be a woman—a very talented, very brilliant woman.” A number of female jurists were discussed as top contenders, and he chose Amy Coney Barrett as the nominee. Neither Democrats nor Republicans objected to the stated intention to nominate a woman. Indeed, many would have taken issue with the idea of Ginsburg being replaced by a man—which would have decreased the number of women on the Court from three to two.

Last month, when Justice Stephen Breyer announced that he would retire at the end of this term, President Biden stated that the nominee to replace him “will be someone with extraordinary qualifications, character, experience, and integrity.” He added, “And that person will be the first Black woman ever nominated to the United States Supreme Court.” This was no surprise, given Biden’s campaign promise, in February, 2020, that he was “looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented.” During his campaign, he announced that he would select a woman as his running mate before choosing Kamala Harris. Biden’s statements were also reminiscent of Ronald Reagan’s pledge, during his 1980 Presidential campaign, to nominate “a woman to sit among the highest jurists.” The next year, Reagan nominated the first woman to the Supreme Court, Sandra Day O’Connor, whom the Senate unanimously confirmed. Reagan reportedly also wished to appoint the first Italian American, which he did by nominating Antonin Scalia, in 1986.

The reported leading candidates—who include Judge Ketanji Brown Jackson, of the D.C. Circuit, and Justice Leondra Kruger, of the California Supreme Court—are jurists whose records, experience, and reputations for excellence would put them on any nonpartisan list of top possible nominees to the Supreme Court. (I clerked with Kruger, and we are friends.) Yet some conservatives have deemed Biden’s approach inappropriate, claiming that, as the Wall Street Journal editorial board put it, Biden’s nomination “elevates skin color over qualifications.” Senator Ted Cruz complained, “If he came and said, ‘I’m gonna put the best jurist on the court’ and he looked at a number of people and he ended up nominating a Black woman, he could credibly say, ‘OK, I’m nominating the person who’s most qualified.’ He’s not even pretending to say that.” The conservative lawyer Ilya Shapiro tweeted that the “objectively best pick for Biden is Sri Srinivasan,” a judge on the District of Columbia Circuit appointed by President Barack Obama. “Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.” (Shapiro, who was to begin a new job this month as the executive director of the Georgetown Center for the Constitution, was placed on administrative leave. Georgetown is investigating whether Shapiro violated its anti-discrimination or other policies—a move that inspired a backlash from both liberals and conservatives against the idea of a university punishing a teacher for offensive tweets.)

The implication that the nominee will be “lesser” because of Biden’s commitment to appoint a Black woman is plainly contrary to observable facts—but it is part of a tradition of portraying identity- and merit-based criteria as opposing interests. When President George H. W. Bush nominated Clarence Thomas, in 1991, to replace Thurgood Marshall, the first Black American to serve on the Court, Bush stated that he would “strongly resent any charge” that he chose Thomas because of his race, given that he was “the best qualified at this time,” and said, “I don’t feel there should be a ‘black seat’ on the Court.” (Bush was alluding to the traditions of filling the “Catholic seat” on the Court, from 1894 to 1956, and the “Jewish seat,” from 1916 to 1965.) Reagan said that he would nominate the “most qualified woman that I can possibly find,” before nominating O’Connor. When Obama nominated Sonia Sotomayor to the Court, in 2009, he did not connect his choice of nominee to her ethnic or gender identity, despite the obvious fact of his making history by appointing the first Latina Justice. (That did not keep at bay the efforts to paint Sotomayor as less qualified because of the assumption that her ethnicity played a role in her nomination.)

Biden’s statements about his Court nominee have put into relief the fight over questions the Court will confront next term about what “discrimination” is: to what extent do our anti-discrimination laws permit officials in government and in private institutions to take race into account when selecting people for desirable spots? Only days before Breyer’s retirement announcement, the Court agreed to hear a pair of cases that will decide whether consideration of a person’s race in university admissions is lawful under the Equal Protection Clause of the Fourteenth Amendment and federal civil-rights law. Under the Court’s precedents, race may be considered as only one of many factors in a “holistic review” of an individual applicant, for the purpose of pursuing an interest in diversity—but race may not be used to designate “seats” for members of a group or to fulfill a “quota.”

The pending cases, brought against Harvard University and the University of North Carolina by the conservative organization Students for Fair Admissions, on behalf of Asian American applicants, will be heard next term, when, presumably, a new Justice will be sitting on the Court. The petitioner will argue that any consideration of race is unlawful and urge the Court to overturn its key precedents permitting the use of race in affirmative-action policies. The legal arguments, which the Court has rejected in the past, are not new, but the outcome may be. The Court’s statement in Grutter v. Bollinger, in 2003, that it “expects that 25 years from now, the use of racial preferences will no longer be necessary” always made it likely that this decade would see serious challenges to affirmative action, and the replacements since then of O’Connor, Anthony Kennedy, and Ginsburg with conservatives has only sped up the time line.

Next term, the Court will likely declare that any consideration of a person’s race in university admissions is unlawful. If the Court does so, the ruling would have implications beyond college admissions, affecting the ability of many other kinds of institutions to pursue racial diversity. Currently our laws prohibit discrimination on the basis of race, regardless of which race is favored or disfavored. If the hiring chair of a company, or a government official, stated that he would consider only Black applicants or only women, that intent would be treated no differently under anti-discrimination law than if he said only white people or only men need apply. But there still remains space for taking race into account, as long as it isn’t the predominant criterion for selection—a space that may start to close next term. From government jobs to private firms, employers may eventually need to stop considering individual candidates’ race even for the purpose of increasing opportunities for historically disadvantaged groups.

In the voting-rights area, a related development is brewing: the Court has signalled that it is open to reconsidering a precedent that permits, indeed requires, states to consider race in drawing electoral districts to avoid diluting minorities’ votes, creating “majority minority districts” that enable Black voters to elect representatives of their choice. In a case about an Alabama electoral map, the Court provoked alarm last week by staying a federal district court’s injunction that ordered the state to add a second majority-Black district. Alabama is arguing that the Voting Rights Act’s prohibition on denying or abridging the right to vote “on account of race or color,” including people’s equal opportunity “to elect representatives of their choice,” must be implemented in a “race-blind” manner—even though the Court’s precedents on the topic accept a race-conscious approach.

Biden’s nominee will be in the peculiar position of undergoing a process that publicly and intentionally considers her race and gender, only to sit on a Court that is engaged in undermining, if not eliminating, the lawfulness of such race-conscious approaches. We are entering a time when those who take steps to insure racial diversity will have to find new methods and new language to describe those efforts. In light of the major changes likely to be handed down soon on the topic of race discrimination, not only will Biden make history as the first President to nominate a Black woman to the Supreme Court, he might well be the last President to publicly present an appointment as an intentional effort to improve the representation of an underrepresented group.