Web Exclusive

US Supreme Court Is Poised to Be Most Diverse Ever
By Miriam Edelman

The Supreme Court of the United States (SCOTUS) is set to make history with its first Black female justice, as US President Joe Biden continues to make the government look more like the increasingly diverse United States. Greater representation can be inspirational to social workers and their clients. When Biden’s nominee, Ketanji Brown Jackson, told her guidance counselor in high school that she wanted to go to Harvard, her counselor told her not to set her “sights so high.” Jackson shows that naysayers are not always correct. She went to Harvard and is set to make history on SCOTUS this year.

Biden’s first-ever nomination to the SCOTUS elevates his considerable efforts to diversify Article III federal judges (SCOTUS justices and federal appeals and district court judges). Unlike the previous four Presidents whose confirmed judges were at least plurality white men, as of January 27, 2022, a slight majority of Biden’s 42 confirmed judges are nonwhite women. In just over one year, Biden has had more nonwhite females confirmed judges than Donald Trump, George W. Bush, and Bill Clinton did in substantially more time, and slightly less than half of these judges under Barack Obama in eight years. One of the nonwhite male judges is Zahid Quraishi, the nation’s first Muslim American federal judge. Another historic pick is Beth Robinson, the first openly LGBTQ federal appellate judge. Florence Pan, another Biden judge, became the first Asian American woman on the D.C. federal district court, replacing Jackson. Lauren King became the first Native American federal judge in Washington State. Diversifying the lower courts makes it easier for the SCOTUS to become more diverse, as many SCOTUS justices are elevated from lower federal courts.

Confirmed US Judges (as of January 27, 2022)

Historically, the SCOTUS has not been diverse. Since 1790, SCOTUS justices have been:

• 95.65% male (110 out of 115);
• 97.39% white (112 out of 115);
• 1.74% Black (2 out of 115); and
• 0.87% Hispanic (1 out of 115).

There has never been an Asian or Native American SCOTUS justice. There also has never been an openly LGBTQ SCOTUS justice. If SCOTUS nominee Jackson were confirmed, she would be the second-youngest justice of the new SCOTUS, the sixth female justice in US history, and the third Black justice in US history. Jackson is 51 years old. Justices who join SCOTUS in her age range (50 to 54 years old) serve on SCOTUS for an average of 18.6 years.

There have been few Black female US federal judges. As of February 25, 2022, just 70 of the 3,843 (1.82%) US federal judges have been Black women, and only 13 Black women have been federal appellate judges.

On February 25, during Black History Month, President Biden announced that he is nominating D.C. Circuit Judge Jackson to be the United States’ 116th SCOTUS Justice. Jackson, who had been seen as a front-runner for this nomination, is the first Black woman to be nominated to the SCOTUS, to replace retiring Justice Stephen Breyer. President Biden made this announcement exactly two years after he pledged to nominate the first Black female to the SCOTUS. At a South Carolina Democratic debate soon before South Carolina’s critical presidential primary, he said, “Everyone should be represented. The fact is, what we should be doing—we talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.”

Biden’s campaign pledge was not unprecedented. When running for President in 1980, Ronald Reagan said that he would put a female on SCOTUS. He fulfilled that pledge when he named Sandra Day O’Connor. Biden also said he’d pick a female as his running mate, and he did. In 2020, Trump said he would appoint a female to replace Ruth Bader Ginsburg, and he named Amy Coney Barrett.

With this SCOTUS nomination, Biden shares a “first” with the 36th US President, Lyndon B. Johnson. Both Biden and Johnson were senators who became vice presidents to less experienced senators who became president. Johnson nominated Thurgood Marshall to be the first Black SCOTUS justice, and now, Biden has named the first female Black justice. Johnson appointed Constance Baker Motley, who was the first Black woman to argue a case before SCOTUS and the first Black female federal judge. Coincidentally, Jackson shares the same birthday (September 14) as Judge Motley, born 49 years before Jackson.

This nomination will not change SCOTUS’s ideological composition. SCOTUS will still be six conservative–three liberal. For the first time, all the members of one ideological part will be all females. The three will be the three liberals (one Black, one Hispanic, and one Jewish).

As a US Senator, Biden played leading roles with some SCOTUS nominations. As chair of the Senate Judiciary Committee for eight years (and ranking member for nine years), he oversaw multiple SCOTUS confirmation hearings, including hearings of Breyer. Biden and Breyer had also worked together when Breyer was the chief counsel of that committee. Both Biden and US President Martin Van Buren (the only other former chair of the Judiciary Committee to become US President) were the committee’s chair during at least one SCOTUS nomination and both, as US President, nominated at least one person to the SCOTUS.

When Biden introduced Jackson as his SCOTUS nominee, he noted the lack of diversity in our nation’s courts: “For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.”

Although Washington, D.C., native Jackson would be the first Black female justice, she has an educational and judicial background typical of a SCOTUS nominee. She went to Harvard for college and law school. She clerked for Breyer, another Harvard Law School alum. She is on what some say is the second-most powerful court in the United States.

Background of Current SCOTUS Justices

Note: Nine justices in US history had been SCOTUS law clerks. If confirmed, Jackson will be the fifth consecutive SCOTUS justice who was a SCOTUS law clerk.

Jackson has been a judge for slightly less than decade, fulfilling careers goals from at least high school. Earlier in her judicial career, Jackson was a federal US District Court for the District of Columbia, nominated by President Obama in 2012 and confirmed by voice vote in 2013. Biden was Obama’s vice president then. As a district judge, Jackson wrote, “Presidents are not kings” in a 2019 ruling that stated that former White House Counsel Donald F. McGahn II had to comply with a congressional subpoena requesting his testimony about Trump’s attempts to obstruct the Mueller probe. As an appellate judge in December 2021, she was part of a panel that ruled that Trump could not shield documents from the House January 6, 2022, committee.

Jackson has already been confirmed by the current Congress. Last year, three republican US senators (Graham, Collins, and Murkowski) voted to confirm her to her current position on the US Court of Appeals for the District of Columbia Circuit, giving her a 53–44 vote. She replaced Attorney General Merrick Garland, also a SCOTUS nominee (the last one of Obama).

Jackson is unique in other ways. She would be the first former public defender on the modern SCOTUS. Thurgood Marshall is the only SCOTUS justice in US history who had a background in criminal defense. The US Senate had also confirmed Jackson to be on the Sentencing Commission, which Biden helped create when he was a US senator. Obama nominated her to be vice chair of the Commission. The only SCOTUS justice who was a member of that Commission is Justice Breyer.

Jackson is related by marriage to former Speaker of the US House Paul Ryan, who was now-US Senator Mitt Romney’s running mate in 2012. (Thus, Ryan and Biden debated each other in the 2012 vice presidential debate.) Ryan’s sister-in-law is married to Jackson’s husband’s twin brother. In 2012, Ryan introduced Jackson when she was being confirmed for her first federal judge position. As a senator, Romney will vote on the Jackson nomination. This nomination is another example of Biden’s tapping family of presidential/vice presidential ticket opposing republicans candidates to major government office, as Cindy McCain (the wife of 2008 republican presidential nominee John McCain) is Biden’s permanent representative of the US Mission to the UN Agencies in Rome.

This current Women’s History Month has been and will continue to be monumental for women at the very top of US government. Just weeks after Vice President Kamala Harris and Speaker of the US House of Representatives Nancy Pelosi (D-CA) made history on March 1, 2022, by being the first two females to be behind the US President at a State of the Union address, there were the first SCOTUS confirmation hearings for a Black female SCOTUS nominee in US history. Only US senators will be able to vote on her confirmation.

If Jackson were confirmed (most likely, she will be confirmed because the democrats control the Senate), then, major history will be made, including the following:

• She will be the first Black female SCOTUS justice (and also the sixth female and fourth nonwhite SCOTUS justice).

• There will be the most number of the following:

o female SCOTUS justices at the same time (four);

o Black SCOTUS justices at the same time (two—these two will be the most senior and most junior SCOTUS justices. Seniority is important for SCOTUS. The most senior SCOTUS justice assigns who writes the majority opinion if the chief justice is not in the majority. Since Chief Justice Roberts sometimes sides with the minority, Thomas yields substantial power. The most senior dissenting SCOTUS justice can assign the author of the dissenting opinion. The most junior SCOTUS justice takes notes during conference and must answer the door when there is a knock when SCOTUS justices are in conference. Seniority also dictates the SCOTUS justices’ speaking and voting order and their seating); and

o nonwhite SCOTUS justices at the same time (three—two Black and one Hispanic).

• There will be the fewer number of white male justices at the same time (four—a minority for the first time), 54 years after Thurgood Marshall, the first nonwhite male SCOTUS justice, became a SCOTUS justice in 1967).

Jackson’s probable new position will help transform SCOTUS and help the United States. As the National Council of Negro Women states, “The appointment of Ketanji Brown Jackson is a watershed moment for women, for people of African descent, and for democracy itself. It proves that the centuries-long disqualifier—being a Black woman—no longer exists.”

Howard University Law School Dean Danielle Holley-Walker, a potential 2016 SCOTUS nominee, says, “With Judge Jackson crashing through this glass ceiling, I hear students talking about the possibility for them to become federal judges, for them to possibly become Supreme Court justices.”

In the future, perhaps, more major government history can be made. There could be the first Black female governor and/or first Black female US president. We are currently just one heartbeat away from having the first Black female, first female, and first Asian American US president.

— Native Washingtonian Miriam Edelman graduated from Barnard College, Columbia University, with majors in political science and urban studies and a concentration in history. For almost five years, she worked on Capitol Hill in personal offices and on committees in the US Senate and the US House of Representatives. In May 2012, she graduated with a master’s in public administration from Cornell University, where she was inducted into Pi Alpha Alpha, the national honorary society for public administration. Primarily for her work founding the Jade Moore Forum on American Politics in memory of her late friend, Edelman was one of two graduate student recipients of the Cornell-wide Distinguished Leadership Award. She also has a master’s of science in social work (focusing on policy) from Columbia University. She aims to continue her career in public service.