Now that America has already seen a black president and a black woman is now occupying the second-highest office in the country, empowerment of the black people in the country might be looked at through a different prism. But are things all that bright?
Certainly, history is in the making as President Joe Biden has nominated the 51-yearold Ketanji Brown Jackson, a black woman, to serve as a judge in the US Supreme Court to succeed Justice Stephen Breyer who will retire at the end of the court’s current session this summer.
Well, a black woman will be appointed to the US Supreme Court for the first time in its 232-year history. This may be in the spirit of Biden’s electoral promises. “For too long, our government, our courts, haven’t looked like America,” Biden said, flanked by Jackson and vicepresident Kamala Harris, the first Black and Asian American woman to serve in the position.
But how much does that imply social equality in the US? Unlike India, each of the nine Supreme Court justices in the US has lifetime tenure. The last appointment to the Court had created huge controversy when Justice Amy Coney Barrett was picked after the death of liberal Justice Ruth Bader Ginsburg.
In an unprecedented move, Donald Trump nominated Justice Barrett just 39 days prior to the 2020 presidential election, and the Republican-dominated Senate moved it at lightning speed. This is in contrast to the fact that when, in 2016, Justice Antonin Scalia died in February, a Republican-dominated Senate refused to hold hearings for Democratic President Obama’s nominee, Merrick Garland, who was nominated 237 days before the election.
The Supreme Court justices, and justices of other courts also, sometimes make landmark decisions that can fundamentally transform American society. From immigration to abortion to LGQTB rights to decide whether Florida votes would be recounted – each of these verdicts sheds profound influence on society. And with the appointment of Justice Barrett by Trump, the Supreme Court is tilted 6:3 in favour of Republican-appointed judges.
Trump got the rare opportunity to appoint three judges in the US Supreme Court, more than 50 judges in the United States courts of appeals, 174 judges in the United States district courts, along with other appointments. Because of these appointments, many believe that Trump’s influence on American society would be much deeper than one would have imagined because these judges would continue to influence the lives and lifestyles of Americans for decades to come. Judges are appointed by the President in the US, and hence these are, quite often, political appointments.
Interestingly though, the loyalty of the Supreme Court justices to their appointing presidents and corresponding parties and their ideologies are widely and openly discussed within American society, media, and research community. Common people and media don’t even hesitate to call judges ‘Democrat’ or ‘Republican’.
Now, let’s look at the issue of representation. The US Supreme Court has existed for 233 years, with 115 sitting justices. If confirmed, Jackson would become the sixth woman to serve on the court – after Sandra Day O’Connor, Ginsburg, Sonia Sotomayor, Elena Kagan, and Barrett. And if appointed, Jackson would become only the third Black justice – after Clarence Thomas and Thurgood Marshall. And Black women justices are not at all common in American society.
A biographical database from the Federal Judicial Center of the US shows that out of 3,843 federal judges, less than 2 per cent have been Black women. With the nomination of Justice Jackson, there was a huge urge to revisit the life and work of another Black woman who profoundly shaped American law. Tomiko Brown-Nagin’s 2022 book ‘Civil Rights Queen’ is a biography of Justice Constance Baker Motley, and an account of the twin struggles for gender equality and civil rights in the 20th century.
‘Justice Is a Black Woman’ is a 2012 TV movie on the life and work of late judge Motley, a New Haven, Connecticut native who worked as a lawyer with the Legal Defense Fund, argued ten cases before the US Supreme Court, and was appointed to the Federal bench by President Lyndon Baines Johnson. And Judge Amalya Lyle Kearse, a Black woman from Vauxhall, New Jersey, was within arm’s reach of a Supreme Court nomination, but Presidents Ronald Reagan, George H.W. Bush, or Bill Clinton didn’t finally choose her from a small pool of possible nominees.
Kearse was recognized as the first Black woman on a Supreme Court shortlist in the 2020 book ‘Shortlisted: Women in the Shadows of the Supreme Court’ by law professors Renee Knake Jefferson and Hannah Brenner Johnson. In its bid to make society fair and equal, courts certainly need reasonable representation of varying sectors of its population. However, diversity alone possibly can’t change a system, or ensure the court rules one way or another.
In his first year, Biden nominated a record number of district and appeals court judges from a range of racial, ethnic, geographical, and legal backgrounds. Yes, a different sort of legacy is being constructed, for sure. And the mark is not getting unnoticed. When Breyer announced his retirement in January, Biden vowed to fill the vacancy by someone who “will be the first Black woman ever nominated to the United States supreme court.”
The opportunity to name a justice to the Supreme Court, thus, might have helped Biden, whose approval ratings have fallen to record lows, politically also. This might as well help the Democrats in the 2022 midterm elections. On the all-important point of social ‘equality’, let’s quote from Justice LaDoris Cordell. In 1982, LaDoris Cordell became the first Black woman appointed as a judge in Northern California. In her memoir ‘Her Honor’, Justice Cordell said: “I was asked, pointedly, when I was appointed, well, maybe you just got appointed because you’re Black. And my response is I would rather be appointed because I’m Black than not be appointed because I’m Black.”
In her poem ‘The Hill We Climb’, recited at Biden’s inauguration, the young black American poet Amanda Gorman pronounced: “We, the successors of a country and a time where a skinny Black girl descended from slaves and raised by a single mother can dream of becoming president, only to find herself reciting for one.” America has come a long way, certainly. However, although the nomination of a black woman judge to the US Supreme Court may be in the spirit of Biden’s electoral promises, would that bring ‘equality’ in American society?
(The writer is Professor of Statistics, Indian Statistical Institute, Kolkata.)