The United States Supreme Court has made several landmark judgments on black and women’s rights throughout its history. In the case Brown v. Board of Education For example, in 1954 the court declared racial segregation in public schools unconstitutional. In 1973 the court ruled in the case Roe v. Wadethat women in the USA have the right to an abortion.
What the court was missing, however, was a black judge. In 1967, Thurgood Marshall became the first African American to serve on the Supreme Court. In 1981, Sandra Day O’Connor became the first woman to hold office as a constitutional judge. But only now, in 2022, is there a chance that the nine-member judges will also include a black woman.
Nothing will change in the basic political direction
This is made possible by a resignation: Stephen Breyer, 83 years old and a constitutional judge since 1994, declared on Wednesday that he would resign from office in the summer. And President Joe Biden has already announced that he will fill a vacancy on the court with an African American woman. The White House confirmed that the President intends to fulfill this promise.
The new appointment will not change anything in terms of the ideological composition of the Supreme Court – and thus the basic political orientation. Stephen Breyer forms the court’s three-man left wing along with Sonia Sotomayor and Elena Kagan. They face six conservative judges: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The latter three were specifically appointed by President Donald Trump with the aim of shifting the court to the right.
Now, if the Liberal Judge Breyer is replaced by a Liberal Judge, the Conservatives’ 6-to-3 majority will remain. That’s why no particularly bitter fight for the new appointment is expected in Washington at the moment. Since the conservative majority is not in danger, the Republicans can give Biden leeway in personnel selection. The two conservative dissenters in the Senate Democratic faction, Joe Manchin from West Virginia and Kyrsten Sinema from Arizona, who have allowed important parts of Biden’s legislative agenda to fail, are also unlikely to oppose the judge’s personnel.
Replacing Breyer later this year was important to Democrats. Because at the moment they have a majority in the Senate, which has to confirm new constitutional judges. The Republicans can not hinder the replacement of the position. Of course, that could change after the congressional elections in November. Then a third of the 100 Senate seats will be up for re-election, and the danger that the Democrats will lose their majority is relatively high.
In recent years, the Democrats have had to learn in a bitter way what can happen then. In 2016, Democratic President Barack Obama nominated liberal lawyer Merrick Garland for the Supreme Court. The then Republican-controlled Senate refused to begin the confirmation process. The position remained vacant and was filled by Trump with the conservative Gorsuch. In 2020, the elderly left-liberal constitutional judge Ruth Bader Ginsburg died. Within a few weeks, Trump and the Republicans in the Senate pushed through the conservative Catholic Amy Coney Barrett as his successor, thereby cementing the right-wing majority in the court. Since then, many Democrats have more or less openly urged Breyer to resign while the White House and Senate remain in Democrat hands. The judge, who is actually appointed for life, has now given in to this urge.
It is still unclear exactly who Biden will nominate as his successor. Several names of candidates are circulating in Washington: the federal appellate judge Ketanji Brown Jackson, for example, or the Californian constitutional judge Leondra Kruger. The trained lawyer Barack Obama, whose appointment to the Supreme Court has repeatedly been speculated about, is probably out of the question because of his gender.
For Joe Biden, the opportunity to do a political favor for black people in America – a loyal and important Democratic constituency – just before the congressional elections comes as a very welcome surprise. His approval ratings are in the basement, important legislative projects such as the social package and the electoral law reform are stuck in Congress. But now the President can expect to win at least one more political victory this year.