Only five women have sat on the US supreme court in its 232 years. Not one has been a Black woman – but that is now set to change.
The retirement of Justice Stephen Breyer has given Joe Biden a unique opportunity and if, as pledged, he chooses a Black woman to replace the 83-year-old, the US president will not only be making history, but recognizing the power of a core constituency.
Biden won the support of close to 90% of Black female voters as a key piece of his 2020 victory over Donald Trump and, as the Democrats’ most loyal group, they have voted at a higher rate than any other demographic in the past five presidential elections.
Biden said he will select his nominee by the end of February, but an informal slate of contenders is already doing the rounds.
“We all know it’s way past time. He made that commitment and he’s delivering. I think that’s a great thing close to 240 years later,” Melanie Campbell, president of the National Coalition on Black Civic Participation and convener of the Black Woman’s Roundtable empowerment program, said.
She added: “The fact that there’s never been a Black woman on that court – it’s a feat in itself that we’re finally at this table.”
Guy-Uriel Charles, founding director of the center on law, race and politics at Duke University and a law professor at Harvard, called the prospect of the new supreme court justice “absolutely historic” and on a par with Kamala Harris becoming vice- president.
And on the court, he said: “The parallel would then be to Thurgood Marshall, the first Black man. To have a Black woman [at] the highest reaches of the profession means something for not just Black people but Black women in particular and having representation one can identify.”
Black voters in South Carolina turned around Biden’s sinking campaign in the 2020 primaries and, in the election itself, Black voters made the difference for him in several key states that Hillary Clinton lost to Trump in 2016, namely Wisconsin, Michigan, Georgia and Pennsylvania. Biden acknowledged that they had had his back and in return promised: “I’ll have yours.”
The constituency is vital for Democrats in many state as well as national elections. In Virginia in 2021, for example, Republican Glenn Youngkin’s gubernatorial victory was in part secured by the fact that his opponent, party veteran and former governor Terry McAuliffe, was unable to earn the full and enthusiastic support of Black voters.
Now Breyer’s retirement announcement arrives amid discontent among Black voters and activists as the Democratic-controlled Congress persistently fails to pass voting rights protections, while racist voter suppression and map-rigging are rampant in many red states.
Meanwhile, any Biden pick joining the liberal wing of the court will find themselves, alongside Sonia Sotomayor and Elena Kagan, comprehensively outnumbered by the conservative super-majority achieved under Trump, writing scorching dissents as American law is forced further right.
Nonetheless, advocates of equity and diversity are not going to downplay the moment.
Ohio Democratic congresswoman Joyce Beatty, chair of the Congressional Black Caucus, said in a statement: “We know that when America’s boardrooms, legislatures, and even the supreme court start to resemble America, we all benefit,” and she urged confirmation of whomever is put forward “without any unnecessary delay”.
Biden has revealed no names, but he said at the White House last Thursday: “The person I will nominate will be a person of extraordinary qualifications, character, experience and integrity”.
That didn’t stop instant conservative sniping.
This prompted Jatia Wrighten, an assistant professor in Virginia Commonwealth University’s political science department, to lament that the US is “really not as far along as we would like to think”.
“A lot of the pushback already is ‘Why this focus on race – is this another form of affirmative action?’,” she said, saying such an attitude “highlights a blindspot in American political history” after centuries of white men as the norm on the court.
To boot, only five of around 300 federal appellate judges in the US were Black women when Biden became president. He appointed five more in his first year.
Wrighten added: “Pundits and legislators and congressional members were saying things like ‘is this person even going to be qualified?’ This idea that if it’s a Black woman in some way she’s not qualified when in the last days of Trump’s presidency they had the audacity to push through Amy Coney Barrett who really had little experience in that realm in comparison to other supreme court justices,” she said.
And she asked: “Why have we not seen more diversity on the supreme court that actually reflects the population that live in this country?
“The question should be: Why hasn’t this been a question before?”