Biden is taking Supreme Court demographics into account. So did Reagan and Eisenhower.
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Dwight Eisenhower appointed Bill Brennan to the Supreme Court, sight unseen, because he was a young Catholic Democrat from a swing state, the “Catholic seat” was vacant, and it was an election year. Thank goodness. Brennan went on to become one of history’s greatest jurists. My employer, the Brennan Center, was created in his honor.
On the wall in my Brennan Center office is a portrait of another personal hero: Louis Brandeis. He was well known at the time of his appointment — dubbed "The People's Lawyer" before the advent of modern public interest law — but Woodrow Wilson chose him largely to appeal to Jewish swing voters. Brandeis faced fierce anti-Semitic opposition. Sen. Henry Cabot Lodge privately complained, "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed." (Lodge, of course, also authored the important voting rights bill to protect the rights of Black Americans, which was defeated by a filibuster in 1890. History is complicated.)
Representation is part of the Supreme Court nomination process. As has been noted, Ronald Reagan promised to appoint a woman, and he did. Not all representation is good, of course. Asked about Nixon nominee G. Harrold Carswell, Sen. Roman Hruska memorably replied, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?” That “praise” more or less doomed the nomination.
Supreme Court nominations intended to make the Court look a bit more like the country it serves have a long provenance. And they are often accompanied by a dollop of overblown indignation. So let's not be surprised when some people huff and puff about President Biden's commitment to nominate a Black woman to the court.
The value of diversity in the judiciary is unarguable. Studies have shown that greater representation of Black judges on the bench heightens the perceived legitimacy of the court among Black Americans, and that judges with different life backgrounds often issue different rulings. As my colleagues Alicia Bannon and Douglas Keith write
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, “[T]he answers to difficult legal questions, especially those that reach the Supreme Court, demand good judgment — and that is necessarily informed by life experience.”
Soon we will know who the nominee is. Any of the names most prominently floated — Kentaji Brown Jackson, Leondra Kruger, or J. Michelle Childs — are superbly qualified. I may be wrong, but I have a sneaking suspicion that the nominee will have a relatively easy time of it.
In part that is because, as admirable and history-making as such a choice would be, it will not change the fundamental fact about the Court. It is now dominated by a hyper-conservative supermajority, the first time in decades that an ideological faction has the Court so firmly in its grip. Already last July, the justices gravely undermined what was left of the Voting Rights Act. By inaction they have allowed Texas, the second-biggest state, to effectively outlaw abortion. They appear poised to greatly expand gun rights and overturn Roe v. Wade — all by the time the next justice takes her seat.
Democracy
Responding to a Wave of Antidemocratic Legislation
Lawmakers in 27 states are considering over 250 bills that would limit voting access, and lawmakers in 13 states are considering 41 bills that would undermine the electoral process. Michael Waldman joined NPR’s “Fresh Air” last week to discuss this wave of antidemocratic legislation and the future of American voting rights. “We've not previously faced a situation where not just tens of millions of people believe the false idea that the elections were stolen, but their leaders keep telling them it was the case,” he said. NPR
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The Story of America’s First Black State High Court Justice
The fascinating story of our country’s first Black state supreme court justice is intertwined with the rise and fall of Reconstruction in the South. Jonathan Jasper Wright joined the South Carolina Supreme Court in 1870, but he resigned during impeachment proceedings seven years later. There wouldn’t be another Black state supreme court justice appointed in any state for another 91 years. “With a lack of diversity on state supreme courts still a serious problem, [Wright’s] complicated legacy as a trailblazing jurist remains timely,” Amanda Powers writes. Read more
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Fellows
Young Activists Challenging Stereotypes
There is a general belief that young people are disengaged or uninterested with our civic life, but recent research on youth civic engagement is challenging that assumption. In a new Brennan Center report, Elan C. Hope explores the issues that are catalyzing youth civic engagement and the untraditional — and often unrecognized — ways that young adults participate in their communities. “Young people often seek means of engagement that extend beyond the traditional bounds of organized politics and community service,” she writes. Read more
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Justice
The Death Penalty Lives On, It Seems
The Supreme Court’s current bench has yet to rule significantly on the constitutionality of the death penalty — or on Eighth Amendment issues in general. But with the looming departure of Justice Breyer and recent departures of Justices Ginsburg and Kennedy, advocates for limiting or eliminating capital punishment altogether may find some cause for concern. In a wide-spanning conversation, Andrew Cohen and Harvard Law professor Carol Steiker discuss recent Eighth Amendment jurisprudence and where the Roberts Court might take what Justice Blackmun once called the government’s “machinery of death.” Read more
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Coming Up
VIRTUAL EVENT: Social Media’s Free Speech Problem
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Thursday, March 24, 6–7 p.m. ET
The problem of misinformation on social media has ballooned over the last few years, especially in relation to elections. The result has been further polarization of our already divided country. How do we control this false speech while protecting the First Amendment — and our democracy? Join us for a live discussion with Richard L. Hasen, leading expert on election law and author of the upcoming book, Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It
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The discussion will explore how social media companies can solve this problem without shutting down the essential free flow of ideas and opinions. RSVP today
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News
Elizabeth Goitein on the CIA’s warrantless surveillance of Americans // THE HILL
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Michael Li on redistricting and congressional retirements // NEW YORK TIMES
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Douglas Keith on state supreme court reform // RALEIGH NEWS & OBSERVER
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Brennan Center for Justice at NYU School of Law
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