In late January U.S. Supreme Court Justice Stephen Breyer announced his retirement, affording President Joe Biden his first opportunity to nominate a liberal justice. Breyer has served on the Supreme Court for over 27 years.
A new liberal justice will not shift the GOP’s 6-3 majority in the court, but it is critical for Democrats to confirm a nominee before the midterm elections, since they will rely on the current Senate majority. Since the start of his presidential campaign, Biden has promised to prioritize diversity in high-ranking government, and in 2021, he has had 40 judges diverse in race, sexuality, gender, and professional experience confirmed by the Senate. Most recently while affirming Breyer’s retirement, Biden committed to nominating the first-ever Black, female Supreme Court justice.
Ahead of a potentially historic nomination, NYU News spoke with NYU Law Professor Melissa Murray, a leading expert in constitutional law, family law, and reproductive rights and justice, about Biden’s efforts to bolster diversity and inclusion on the Supreme Court. [Editor’s note: On February 25, after this article was posted, President Biden nominated Judge Ketanji Brown Jackson of the US Court of Appeals for the DC Circuit to fill Justice Breyer’s seat on the Supreme Court.] Murray is the Frederick I. and Grace Stokes Professor of Law and faculty director of the Birnbaum Women’s Leadership Network.
Tell us about Biden’s approach to ensuring diversity in high ranking courts so far. What unique opportunities would come with nominating a Black woman to the Supreme Court?
I’ve always been of the assumption that if you don’t have diversity in your pool, then you’ve overlooked great candidates, and you therefore do not have the best pool that you could assemble. So to me, the absence of diversity actually signals the absence of quality in a pool. I think it’s terrific that Biden has been broad in his outreach, and it’s important to underscore that the diversity he’s bringing to the federal bench is not the sort of aesthetic diversity I think people immediately think of. He's looking at diversity of professional experience. Prior to his administration, most presidents had appointed judges who came from prosecutorial backgrounds or from large law firms. He’s really brought people into the fold who would not have been considered before, but who have really important experiences given the docket of the federal court. So there are public defenders, there are labor lawyers, there are civil rights lawyers. These were people that I think in past administrations would not have gotten a shot, but they are excellent and they deserve to be considered, especially given the breadth of work that the federal courts cover.
Now what is unique about this particular opportunity is that Black women are an incredible part of Joe Biden’s success story as a president. He really rose to the presidency on the backs of Black women who supported him even when he was not the frontrunner in the Democratic field. I think it's terrific that he’s chosen to recognize the impact that Black women play in our democracy by insisting on representation at all levels of the federal judiciary, including the Supreme Court. The nomination is obviously historic because there has never been an African American woman to serve on the court, though there have been two African American men and one Latina. But I think that kind of representation is important at this moment when the Supreme Court is taking up a number of hot-button issues that affect the Black community–and Black women–in really important ways, whether it is reproductive rights or gun rights or affirmative action. Currently the perspective of the Black community on the court is reflected in the words and writings of Justice Clarence Thomas, and I think that runs the risk of presenting the Black community as a monolith. It's really important that we underscore that there might be multiple ways of viewing some of these issues within a single community, and perhaps having that representation is important. Of course, the court itself could still be more diverse, so this is a great start.
How does Breyer’s resignation influence the public perception of the Supreme Court? Do you anticipate it impacting the conversation about increasing the number of justices that sit on the court?
I think lots of people were hoping for Justice Breyer’s resignation. He was being pressured to resign in order for President Biden to fill his seat with few complications. And he resisted doing so because he didn’t want it to appear political. But interestingly and perhaps even ironically, this nomination is a real political gift to the Biden Administration because it provides an opportunity for a really important and historic win when the Administration has faced some really difficult and challenging circumstances trying to get its domestic agenda through Congress.
But to be very clear, this appointment is not going to dramatically alter decision-making at the Supreme Court. It’ll still be a 6-3 conservative supermajority, and I don’t know that this nomination will abate the calls for efforts to rebalance the court in the wake of that conservative supermajority. Perhaps it will defer those calls for a time as people are buoyed by the excitement of the nomination, but nothing will change in terms of the institutional dynamics of the court. I think this new justice may introduce some new energy, perhaps some more dynamism. But it’s still a 6-3 conservative super-majority.
It will be really interesting that the entire liberal wing of the court will be diminished to three members, but it will be three women in the minority, and two will be women of color. In many ways, it might be really interesting to the public and perhaps telling that the liberal wing of the court perhaps best reflects some aspects of a multiracial democracy, both in the way it looks and in the values it reiterates.
The speed of Supreme Court justice nominations and confirmations have been sources of controversy, especially within the Obama and Trump administrations. Is this issue compromising a process that should otherwise be done with great care and deliberation?
I don’t know that they're necessarily always speedy. Amy Coney Barrett's 27-day confirmation process was quite unusual and I think has contributed to the sense that perhaps the court is unduly politicized to some degree, because it was so rushed. But you know, here, there is plenty of time.
I think this is likely going to take two months. That seems pretty standard. I don’t think that this is a decision that needs to be belabored. They have plenty of material to work with. As long as the hearings go off and in short order, and there are no surprises as there have been in the past, I think it will go as planned and it will be plenty of time.
What legacy does Stephen Breyer leave behind after 27 years on the Supreme Court?
He is perhaps the court’s most optimistic justice. He is someone who has deep faith in institutions. He believes in compromise and consensus. And I think you see a lot of that, not just in how he chose to make his decision about retiring, but just in his jurisprudence more generally. He was in the minority of the court for much of his 27 years there. He was also the junior justice for 11 years, which meant that he probably didn’t get the sexiest opinions. He had a lot of workaday opinions, and because he was often in the minority, much of his really great writing at the court really comes in the form of dissents. He wrote a stunning and riveting dissent in Parents Involved [in Community Schools v. Seattle School District No. 1], which is a case about the ability of school districts to use race conscious admissions policy in order to achieve integration. The court struck down those policies, and Justice Breyer wrote a really impassioned defense that was very granular and pragmatic. He was known on the court for being very much a pragmatist, someone who loved a balancing test and really thought about what policy meant on the ground, and I think that will be his legacy going forward.