Supreme Court Spot Opens: Is Progress Possible on America’s Most Influential Bench?

“Founding Father” Alexander Hamilton explains in his Federalist no. 78 that the judiciary is by constitution the weakest of the three branches in the American governmental system. The judicial branch lacks the “sword” of the executive branch and the “purse” of the legislature. Nonetheless, according to Hamilton’s conceptualization, the judiciary normatively plays a crucial role in maintaining the integrity of the Constitution and the superiority of the people. The doctrinal foundations of the Supreme Court of the United States (SCOTUS) (and other local/state courts) are today threatened by the politicization of judicial processes and the underrepresentation of certain populations.

The SCOTUS’s precarious situation is why we must pay particular attention to the open seat on the bench in light of Justice Stephen Breyer’s recent retirement announcement. Breyer’s exit signals an important choice for President Joe Biden, who has already committed to nominating the first Black woman to the Court. There are currently only two Justices of color on the bench, only one of whom is Black. Moreover, there are only three women (out of nine Justices). Of the candidates Biden is considering, Ketanji Brown Jackson, Leondra Kruger, and Michelle Childs are the most prominent choices; each currently serves on an appellate or state supreme court. The nominated candidate “would be only the eighth person in the court’s 233 year history who was not a white man,” as mentioned in a Washington Post article. While Biden’s intention to nominate one of 10 Black women candidates is a strong step forward for the diversification of the Court, the bench is far from a mirror image of American ethnic and gender demography. Ellie Carter, an American Sciences Po 1A, highlighted that “significant disparities still exist in terms of race, sexual orientation, financial status, and even geographic location, with most justices throughout history being almost exclusively straight, white, wealthy Protestant men from the Northeast who graduated from an Ivy [League Institution].”

Further, Carter argued that a critical element in the discussion on racial, ethnic, religious, and geographic discrepancies on SCOTUS is “the high cost of education” in the U.S., especially for law school, for which “average annual tuition and fees… is usually around $50k for three years.” Carter touches on the opportunity cost of pursuing a law degree considering that one “could have otherwise gone straight into a full time job,” especially if burdened by “loans from an undergraduate degree.” An NPR article discusses the barriers to entry to the professional law sphere in noting that “many first generation college grads applying to law school don’t know the ins and outs of the application process” and lack “personal connections” who can help them navigate the system. Carter does not “think it’s a stretch to say that making education more affordable could eventually make these types of [judicial] positions more accessible.”

In another sense, Biden’s pick will have significant implications for the Court’s future decisions on major questions relating to the American Constitution. Biden has expressed his desire to select a nominee who values the existence of “unenumerated rights in the Constitution” and thus rejects a textualist approach to jurisprudence. According to NPR analysts, Biden’s pick will likely have little influence on “the ideological tilt of the court,” meaning that the confirmation process in the Senate may be less politically aggressive. Carter noted that “the fact that Biden’s nominee will need to be moderate enough to garner enough support to be confirmed by a pretty divided Senate means that, hopefully, [there] could be a positive outcome.” Celeste Abourjeili, a Lebanese-American 2A at Sciences Po, is slightly less hopeful: “The fact that we are even looking at the political affiliation of candidates and existing justices is already an indication that the neutrality of the court has been compromised.” The overarching issue, however, seems to be that there is a tendency for Justices to make decisions that, as Carter explains, are not “grounded in constitutional reasoning” and are instead based along “ideological lines.”

It would be easy to conclude that Hamilton’s conceptualization of the judiciary was overly idealistic and naive to suggest that undoing two centuries of underrepresentation will be a smooth feat. It will take significant effort from all actors in the American political system to ensure that relying on reason, as opposed to partisan lines, remains the core of our judicial regime.