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All-Female Liberal Wing to Change Supreme Court Dynamics

Feb. 1, 2022, 4:11 PM

President Joe Biden’s first U.S. Supreme Court appointment won’t alter the 6-3 conservative majority, but her presence could spawn subtle changes on both the left and right sides of the bench.

Adding the court’s first Black woman to replace the retiring Stephen Breyer, as Biden has said he intends to do, could prompt conservative justices to adjust how they approach cases involving race and gender.

The other two Democratic appointees on what would be an all-women liberal bloc, will have new roles, particularly Sonia Sotomayor, who will have the power to assign opinions as the senior associate justice in the minority.

Even though “the new Biden appointment does not swing the balance” of the court, “every seat matters,” said Ciara Torres-Spelliscy, a visiting professor at American University Washington College of Law .

Conservative Bloc

The potential impact of a new justice might depend a lot on “personality and background,” said Harvard Law professor Guy-Uriel Charles.

Candidates reportedly under consideration include Ketanji Brown Jackson, a former public defender and federal trial court judge who now sits on the U.S. Court of Appeals for the D.C. Circuit, Leondra Kruger, a California Supreme Court justice who previously worked in the U.S. Solicitor General’s office, and J. Michelle Childs, a federal district court judge in South Carolina.

As a Black woman, any of the contenders could provide new insight for the current justices. Biden has prioritized demographic and professional diversity in his judicial appointments so far to shake up a federal branch comprised mainly of white males with elite pedigrees—many of whom have backgrounds in private practice and prosecutorial experience.

Charles notes that former Justice Sandra Day O’Connor commented that she learned a lot from the court’s first Black justice, Thurgood Marshall, and that his presence impacted her views on race.

An early test will be a challenge to affirmative action programs at Harvard and the University of North Carolina, which the justices are likely to hear at the start of their next term in October. The conservative majority is expected to strike down or limit decades-old rulings that narrowly allowed the use of race in higher education admissions.

“Justice Clarence Thomas will no longer be the only credible black voice on this issue,” Charles said. So the “conservative majority may have to be more subtle in its reasoning.”

The same goes for cases touching on gender. While the liberal bloc will consist of three women, the conservative side will include five men and Amy Coney Barrett.

“When all of the Court’s liberals are women and all of the Court’s conservatives are men, save one, the Court’s gender cases present a power dynamic that the Court’s conservatives might wish to avoid,” Charles said.

Liberal Bloc

The two other liberal justices—both Barack Obama appointees—will take on new roles, said Akin Gump’s Pratik A. Shah.

Sotomayor will be able to assign dissenting opinions to speak for her side, a role Breyer previously held. As the only Hispanic to sit on the high court, Sotomayor has often been the left’s leading voice on criminal justice issues, and more recently, gender equality.

Of the conservative majority’s most recent action backing Texas’ six-week abortion ban, Sotomayor wrote that the case has been “a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies.”

Shah suspects Justice Elena Kagan will be thrust “into a more prominent role,” too.

Long the liberal’s most junior justice, some of Kagan’s most consequential opinions have been in cases implicating democracy, like redistricting.

In the court’s landmark 2019 ruling Rucho v. Common Cause, a 5-4 court said the judiciary wasn’t able to police partisan gerrymandering, instead reserving that role for the political branches. “Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote in dissent.

“Although she has picked her spots to date, I suspect we will see Justice Kagan marshal her formidable powers of persuasion and sharp pen more forcefully on a more regular basis,” Shah said.

On the Bench

An immediate change will be seen during oral arguments, at which Breyer has been known known for his long, often humorous, hypotheticals. His absence will make room for all colleagues to participate more actively.

And the addition of a new justice will reshuffle seating arrangements on the bench. While Chief Justice John Roberts will remain in the middle with Thomas to his right, the other six justices will all shift positions.

While those seating arrangements will change come October, it may take much longer for Biden’s appointee to impact the court’s direction.

“In the long term, Biden’s appointee will likely have decades to shape precedent especially if he, or another Democratic president, gets the next seats on the court,” Torres-Spelliscy said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com