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SCOTUS to lose voice of compromise, become more representative

On Thursday, Jan. 27, United States Supreme Court Justice Stephen Breyer announced he will retire from his position at the start of the summer recess, around June or July. President Joe Biden has promised to fill the position with a Black and female justice.

“This is not a resignation or a nomination that will change the ideological composition of the court,” said Rachel Paine Caufield, a professor of political science at Drake.

Amy Coney Barrett’s confirmation to the Supreme Court in 2020 meant that the conservative-leaning justices had a 6-3 majority. With Breyer being a moderate liberal and Biden being a liberal president, the nominee will not cause a shift in the overall leaning of the Court.

“Judging is a nonpolitical application of law to the case,” Caufield said. “[Breyer] really thoughtfully and intentionally [was] uncomfortable with the presence of politics at the Supreme Court.”

Without Breyer on the Court, one of the strong voices of compromise is lost. He leaves behind a 27-year legacy of serving on the Court. His moderate voice was often seen as pragmatic and sensible, Drake constitutional law professor Miguel Schor said.

“The court, not unlike the nation, is divided ideologically,” Schor said. “He was a consensus builder. He was able to build bridges to the other side.”

Many factors may have played into Breyer’s decision to retire. One of the main reasons for the timing of his resignation may have been a fear of repeating what happened in 2020 after Justice Ruth Bader Ginsburg’s death. 

Trump’s nomination of Barrett created tension between Democrats and Republicans, as Barrett was confirmed just 27 days after her nomination, shortly before the 2020 presidential election. Often, nominations occur months before the confirmation of a justice. Caufield said Democrats hoped that the nomination would occur after the winner of the election was determined. Trump, however, rushed to have Barrett put on the bench. 

Because the next presidential election is still two years away and Democrats have a 50-50 majority in the senate with Vice President Harris being the tie-breaking vote, Caufield said Biden’s nomination will likely pass through the senate successfully. 

“I don’t think this [nomination] will be as contentious,” Caufield said.

To uphold one of his major campaign promises, Biden has announced he will nominate a Black woman to the court. This was a big contributing factor to Biden’s victory in the primary elections in South Carolina and ultimately led to his victory in the presidential election, Caufield said.

“African American women have been the backbone of the Democratic Party for a long time,” Schor said.

This is not the first time a president has made this decision based on specific demographics. In 1967, President Lyndon B. Johnson nominated Thurgood Marshall, the first Black justice, to the court. President Ronald Reagan appointed the first woman, Sandra Day O’Connor, in 1981. 

“You do want a court that represents a nation,” Schor said. 

Gender and racial diversity aren’t the only ways the court is becoming more diverse. Currently, eight of the nine justices are graduates of either Harvard or Yale Law Schools. Barrett received her degree from Notre Dame. Potential nominee J. Michelle Childs is a graduate of the University of South Carolina School of Law.

Regardless of the future justice’s educational background, sending a Black woman to the Supreme Court would be a landmark moment in American history.

“This would mark history for Black women. Especially for Black History Month, it’s exciting for that to happen now,” said Olivia Plant, an executive board member of the Drake Coalition of Black Students.

As a Black person, Plant said that seeing her racial demographic represented in the highest court in the country would be very meaningful to her. 

“People will say things and not live up to what they say, and that’s how politics works,” Plant said. “But Biden is upholding a promise. This would be something that would be a very very big step for Black people.”

Though the next member nominated to the Supreme Court will not lead to any major changes in terms of court majority, this decision is a step toward representation and equity in political positions. 

“Its biggest influence is symbolic,” Caufield said. “When people have looked at courts for generations, they have seen a group of white men. The diversification of the Supreme Court in particular is a really big symbolic step in signaling our social progress as a country, allowing lots and lots of people to see themselves as decision makers in our democracy.”

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