Bloomberg Law
March 2, 2022, 9:00 AM

Judging While Black, Judging While Female

Bennett Capers
Bennett Capers
Fordham Law School

In a way, we’re used to seeing Black women judges. Or at least Black women playing judges on TV and in movies. Think Judge Hatchett. Or the Black woman judge in “Legally Blonde.” Or “Primal Fear.” Or “The Next Big Thing.” There is even a Reddit thread on the number of Black women judges on the screen.

But in reality, to be a judge who is Black and female is a rarity, so much so that many conservatives decried President Biden’s promise to name a Black woman to the U.S. Supreme Court as affirmative action.

Never mind that presidents have long factored in demographics in their nominations to the Supreme Court, including religion and geography. President Reagan campaigned on nominating the first woman, and did so with his nomination of Justice Sandra Day O’Connor.

But now since Biden has done it—he’s announced the nomination of Judge Ketanji Brown Jackson, a D.C. Circuit Court of Appeals judge whose credentials hold up against any current member of the court—it seems the perfect time to ask: What might it mean to have to a Black woman on the Supreme Court?

This question goes beyond the historical significance that, of the 115 justices who have served on the Supreme Court since this country’s founding, Jackson will be just the third Black person, and the first Black woman. Or the fact that Jackson herself is in many ways an embodiment of the difference the court can make, from decisions such as Brown v. Board of Education ending de jure segregation in schools, to Gideon v. Wainwright granting indigent criminal defendants the right to appointed counsel (Brown was a federal public defender), to Loving v. Virginia striking down laws against interracial marriage (Brown’s husband is white).

History-making matters, but the question I’m asking is slightly different. What would it really mean to have a Black woman on the Supreme Court?

Role of Race and Gender in Decision Making

During her confirmation hearing to the D.C. Circuit, Sen. John Cornyn (R-Texas) put the question this way: “What role does race play, Judge Jackson, in the kind of judge you have been, and the kind of judge you would be?”

The question was reminiscent of the “wise Latina” questions put to Justice Sonia Sotomayor when she was being confirmed to the Court.

Of course, White nominees aren’t asked how their whiteness will play a role in their judging—perhaps because the White senators asking the questions already know the answer. Or they equate whiteness with the baseline, with neutrality. Or maybe the senators are sincerely curious.

We had never had a “wise Latina” justice before Sotomayor was confirmed. And Jackson, if confirmed, will be the first Black woman justice. How will you judge? And what role will race play?

At her D.C. Circuit confirmation Jackson answered this question much as Sotomayor did at her Supreme Court confirmation hearings. It would be inappropriate to consider race in judging a case, Jackson answered. But she hoped her unique life experiences would contribute to the court.

It’s a measured answer, the kind of answer designed to placate and appease. It’s the answer, one suspects, that any nominee is coached to give if they hope to be confirmed.

Recently, I have been part of a book project in which legal scholars, almost all people of color, have re-written dozens of important Supreme Court decisions—from Plessy v. Ferguson to Korematsu to Roe v. Wade to Terry v. Ohio—to imagine how these decisions might have come out differently had a justice open to racial differences, and indeed open to critical race theory, been on the court and able to muster a majority.

At a time when CRT is under attack, and when the court embraces “colorblindness” even though it entrenches an unequal status quo, these scholars offer a vision of Supreme Court decision-making that is more inclusive, rights-enhancing, and emancipatory.

Life Experience Matters

What vision will Jackson bring to the court, assuming she is confirmed and becomes as associate justice? I don’t know.

But I do hope she’ll bring all of herself, including her life experience, to her judging. And that’s a life experience where race matters, and gender matters.

For her to simply be a Black woman judge is window dressing, on par with hiring a Black actress to play a judge. But to have her take the bench and judge as a Black woman—as someone who knows personally that America is still becoming what it must be, a place where we all belong—that’s what I’m hoping for and looking forward to. That’s what I’m here for.

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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Bennett Capers is a professor of law and director of the Center on Race, Law and Justice at Fordham Law School.

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