Bloomberg Law
Jan. 31, 2022, 9:00 AM

It’s Time for a Black Woman on the Supreme Court

Megan D. Byrne
Megan D. Byrne
Center for Appellate Litigation

This nation’s highest court has never even come close to reflecting its own diverse population. While over a hundred people—115 to be exact—have served on the U.S. Supreme Court in its more than 200-year history, all but seven have been both White and male.

Only three Supreme Court judges have been people of color. And zero of them have been Black women. In fact, a Black woman has never even received a nomination to the court. But if President Biden makes good on his campaign promise, a Black woman may soon be seated for the first time in history.

Biden’s nomination will come at a time when our nation is more explicitly confronting the lack of representation that people of color have at the highest levels of government and power. Our nation’s high courts represent only a microcosm of this larger phenomenon.

In addition to the bleak representation on the Supreme Court itself, a 2021 Brennan Center report found that only 17% of judicial seats in state high courts were held by people of color, even though people of color make up nearly 40% of the U.S. population. Lack of diversity is reflected even in the professional backgrounds of our nation’s highest judges, as 37% are former prosecutors but only 7% are former public defenders.

A Disproportionate Impact on Black Communities

Although our highest court has remained consistently non-representative of the racial makeup of our nation, its decisions have had a disproportionate impact on communities of color, and Black communities in particular. Hundreds of years of Supreme Court decisions have not stopped at the courthouse doors for Black communities, but have disseminated into the streets, permeating workplaces, schools, vehicles, and homes.

As far back as 1858, Dred Scott v. Sandford coldly told Black people that they were not considered U.S. citizens. In 1896, Plessy v. Ferguson told Black people that their forced segregation was not only legal but fair. This remained law for over 150 years from the Constitution’s ratification until Brown v. Education disallowed segregation in a series of decisions that began the long, slow march toward an integrated educational system that, quite honestly, has still not yet been reached.

In all of these cases and many more, Black communities were told by all-White Supreme Court panels what it would mean to be Black in America.

Countless present-day Supreme Court decisions continue to have a disproportionate effect on people of color. The deluge of voting restrictions laws that followed in the wake of Shelby County v. Holder have—as intended—disproportionately affected Black and Latinx Americans’ access to the ballot.

Affirmative action cases like Gratz v. Bollinger have outlined the court’s waning approval of affirmative action (an issue also currently slated for next term). And this is to say nothing of the disparate impact that criminal legal decisions, on topics ranging from police misconduct to juror discrimination, have on the same communities of color that make up a grossly disproportionate amount of those ensnared by the U.S. criminal system.

These decisions continue to inform what it means to be Black in America.

Of course, President Biden’s specific nominee is not yet known, and one cannot know for certain her views or experience with the above issues. After all, Black women are far from monolithic. Still, no matter the selection, a Black female nominee will have an identity never shared by anyone else on the bench. The nominee will more closely resemble children who rarely see their own faces reflected at the highest levels of government.

Perhaps most significant, she will be from a community that has borne the brunt of hundreds of years of decisions made largely by people who do not share or understand their identity.

Multiple Lenses, Varied Experiences Are Important

Common foundation in identity is particularly important in the appellate context in which our new justice will be sitting. After all, our nation’s highest judges don’t preside over trials, but instead decide integral questions of law by reading a cold record made up of document submissions. These records often include transcripts, but rarely do these transcripts convey the tone of the speaker. They include factual summaries, but rarely are such summaries able to capture the entire context surrounding the issue at hand.

In sum, appellate judges must necessarily engage in some interpretation when considering the facts and circumstances of a case. Such interpretation necessarily brings to bear one’s own background and personal experiences. Thus, it is important that the members of the court can draw on varied experiences and look through multiple lenses in order to arrive at the most just outcomes.

Unsurprisingly, speculation about the potential nominees President Biden might choose is already well underway. The person chosen may be a sitting jurist or a practicing attorney. She may have previously worked on behalf of the government prosecuting cases, as is true for most state high court judges. Or perhaps she will be within the minority of people elevated to the court from a public defense or civil rights background in which she has focused on championing those with the least amount of power.

While this writer personally hopes for the latter, one thing is for certain: Just as important as the moment the first Black woman gets confirmed to the Supreme Court will be the moments after, when our country actively continues to build representation at all of its highest levels.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Megan D. Byrne is a supervising attorney and director of the Racial Justice Project at the Center for Appellate Litigation, where she supervises the appellate representation of indigent criminal defendants with a concentration on racial equity principles. She previously worked at Kirkland & Ellis as a litigation associate.

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