His letter to the White House arrived on Thursday, confirming the news that had been widely reported the day before: Longtime justice Stephen Breyer would retire from the U.S. Supreme Court at the end of the current term. “I have found the work challenging and meaningful,” Breyer wrote of his nearly 30 years on the nation’s highest court.
His departure paves the way for President Joe Biden to make his first Supreme Court nomination—a justice who, if confirmed, will likely serve for decades and, in the immediate future, maintain the current 6-3 split between conservative and liberal justices.
Appointed to the nation’s highest court by President Bill Clinton in 1994, the 83-year-old Breyer has long been known for his pragmatic approach to the law, a jurist who believes that the work of the courts is justice, not politics, said Frances Hill, a professor of law and Dean’s Distinguished Scholar for the Profession at the University of Miami School of Law.
“He believed in facts, not ideologies, as the basis of judicial opinions. He believed that people should choose their leaders based on the votes of the people of the United States,” Hill said. “He supported voting rights, transparency in campaign finance, and accountability of the people’s elected representatives.”
She noted that Breyer and Associate Justice Sandra Day O’Connor, who served on the court from 1981 to 2006, worked together on public education regarding the Constitution and the role citizens play in our constitutional system. He also played a central role in convincing his colleagues on the court to uphold Obamacare, Hill said.
“As time passes, he is likely to be considered a consequential justice who understood his role on the court and who understood the importance of leaving when his departure could protect at least some of his values,” Hill explained.
Now, attention quickly shifts to who Biden will nominate to fill Breyer’s shoes. During his presidential campaign, the candidate promised that he would nominate a Black woman to the nine-justice court, and during a Thursday news conference at the White House with Breyer in attendance, Biden reaffirmed that pledge, saying such a nomination is “long overdue.”
“The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said.
Among the leading candidates to succeed Breyer: Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia, California Supreme Court Justice Leondra Kruger, and South Carolina U.S. District Court Judge J. Michelle Childs.
“Of course, any Biden nominee will almost certainly fit the model of what is oversimplified as a liberal justice: sympathetic on combatting police violence against people of color, the issue of a woman’s right to choose, and to an expansive view of equal protection that strongly affirms the autonomy of women, gays, and immigrants,” said professor of law Donald Jones. “But a Black woman stands at the intersection of two social identities, both gender and race. As such, the difference she is likely to make is in her ability to bring a unique voice and perspective to her interpretation of constitutional questions.”
Should a Black woman be confirmed to the Supreme Court, “it would definitely diversify the court in terms of racial representation,” said professor of political science Louise Davidson-Schmich, noting that only two Black justices, Thurgood Marshall and Clarence Thomas, have ever served on the court. “And they were men,” she said.
“Ketanji Brown Jackson and Leondra Kruger are both Ivy League-educated as are most other justices on the court,” she said. “But J. Michelle Childs would add additional diversity in terms of educational background, as she went to law school in South Carolina.”
But any pick will bring his or her personal life experiences to the cases heard before the high court, “and certainly African American women’s life experiences are likely to have differed from that of other men or women serving as justices,” Davidson-Schmich said. “Overall, however, the addition of one African American woman is unlikely to change the Supreme Court as an institution; and ideologically, anyone Biden picks will likely be part of the court’s liberal wing just as Justice Breyer was.”
If anything, Biden’s nominee, should she be confirmed, will likely continue two common trends of Supreme Court justices: most are graduates of either the Harvard or Yale law schools, and most have clerked for the high court, noted Charlton Copeland, professor of law and Dean’s Distinguished Scholar at the University of Miami.
“With the exception of Amy Coney Barrett, who attended Notre Dame, the Harvard and Yale law schools have a lock on the court, with four current justices having each gone to one of those two schools of law,” said Copeland, adding that Jackson and Kruger are products of Harvard and Yale, respectively. “And Jackson clerked for Justice Breyer, and Kruger for the late John Paul Stevens,” he said.
But how would Jackson, Kruger, or Childs change the court? “Neither attended a law school with a tenured Black woman on its faculty. So, they quite likely bring experience of being the first, the only, at numerous professional settings,” Copeland said. “While this would have been true of many of the women justices and [Associate Justice] Clarence Thomas, they are younger by decades, and I think issues of access, inclusion, and the fair distribution of elite resources are likely not to be lost on them. And while we are talking about these women as Black women, their careers have not revolved around race in the way that Thurgood Marshall’s or Clarence Thomas’s pre-court careers did. [Jackson’s, Kruger’s, and Childs’s] careers mark something of the promise of the civil rights movement and the movement for gender equity in the profession.”
At a time when Biden’s approval rating has hit a new low—just 41 percent of Americans approve of the job he is doing, while 56 percent disapprove, according to a new Pew Research Center survey—would nominating and putting a Black woman on the Supreme Court give a boost to his presidency?
“Given the deep divide between the left and right in the United States, this appointment is not likely to shift public opinion markedly up or down in the short run,” said Casey Klofstad, a professor of political science in the College of Arts and Sciences. “Support for the president may be buoyed among Americans who approve of the appointment, while those opposed may double-down on their negative views on Biden, effectively canceling each other out. The potential impact of this appointment on the Biden presidency is longer-term. It will have a direct impact on Biden’s legacy as well as future SCOTUS decisions.”
