As we await President Joe Biden’s nomination to fill the Supreme Court seat that Stephen Breyer will vacate this summer, many commentators are saying the nominee will not alter the ideological balance of the court. The 6:3 split in favor right-wingers will not change. Each new member changes the court’s dynamics. “The Court changes every time there’s a new face. The dynamics are different” when a new justice joins the court; “that is the way the system works,” Justice Harry Blackmun told Professor Philippa Strum in a 1993 interview. Biden has a golden opportunity to replace Breyer with a progressive justice — one who could help lay the foundation for a political shift in the future.
An examination of Breyer’s voting record in the areas of criminal justice and civil rights reveals that he has been out of step with his fellow liberals on the court.
According to a report, Breyer voted less liberally than any other Democratic appointee (Ruth Bader Ginsburg Sonia Sotomayor, Elena Kagan) January 24, 2022, reportBy professors Lee Epstein (and Andrew Martin) and Kevin Quinn
This divide between Breyer and his liberal colleagues is particularly apparent in cases involving defendants’ rights and civil rights litigation.
Breyer’s Pro-Police Record in Search and Seizure Cases
Breyer’s disproportionately pro-police votes were most prevalent in search and seizure cases.
Breyer cast the decisive vote in 2013 to reach a 5-4 majority Maryland v. KingJohn Roberts joined Clarence Thomas, Samuel Alito, and Clarence Thomas. They believed that DNA samples could be taken without suspicion of criminal activity, consent or permission from anyone arrested for a serious crime, just for the purpose if investigating other crimes.
Breyer again cast the fifth ballot for police in the 2016 case Utah v. Strieff. After Edward Strieff was stopped, police discovered that he had an outstanding warrant. The court allowed the prosecution to use evidence against Strieff since the warrant was independent from the illegal stop. This case gives the police incentive to violate Section 4 because they know that illegally seized evidence can still be admissible in court.
Breyer also provided the fifth vote for police in Navarette v. CaliforniaA 2014 case in which the court ruled that an anonymous tip that a driver was driving erratically would support traffic stops by the police.
Breyer’s Votes Against Affirmative Action and Gay Rights
In affirmative action cases, Breyer’s votes also often differed from those cast by his liberal colleagues.
Breyer voted to strike down the University of Michigan’s affirmative action program in the 2003 case of Gratz v. Bollinger Because the ranking system automatically gave a point increase to racial minority groups instead of making individual determinations. John Paul Stevens and David Souter dissented.
Breyer voted against Sotomayor who voted with most to maintain affirmative action at the University of Texas. Fisher v. Univ. of Texas. The majority of 4 to 3 respondents believed that the use ethnicity and race as admission criteria was too narrowly tailored to a compelling interest for diversity.
Breyer did not join Ginsburg nor Sotomayor, who had dissented in 2014 Schuette v. Coalition to Defend Affirmative Action. The 6 to 3 decision held that an amendment to Michigan’s constitution that prohibited state universities from considering race in its admissions process did not violate the Constitution’s Equal Protection Clause.
Breyer voted for the majority over the dissents by Ginsburg and Sotomayor in the 2018 case Masterpiece Cake Shop v. Colorado Civil Rights Commission. The court ruled 7-2 that the cake shop could refuse, on religious grounds, to bake a wedding cupcake for a same-sex couple.
Biden’s Nominee Should Be a Progressive Black Woman
Biden has promised to name a Black woman on the high court. If confirmed by the Senate, she would be the third Black justice and the sixth woman (and significantly the first Black woman) in the court’s 233-year history. 108 of the 115 Supreme Court justices have been white men. The court currently has no ex-public defenders or civil right attorneys.
Most likely candidates to replace Breyer are very different in their records on social justice issues.
Ketanji Jackson, the most innovative jurist, is reportedly being considered. Jackson, a judge in the U.S Court of Appeals District of Columbia Circuit, was elected to fill the vacancy left by Atty. The Senate voted 53 to 44 last year to confirm Gen. Merrick Grland. All 50 Democratic senators and three GOP senators — Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina — voted for her.
President Barack Obama named Jackson as a U.S. District Court Judge in 2012. Jackson graduated from Harvard College with high honors and was the editor of The Harvard College Magazine. Harvard Law Review at Harvard Law School, clerked for Breyer.
Jackson, who was a public defender, would be the Supreme Court justice to have represented criminal defendants ever since Thurgood Marshall. Jackson represented several Guantánamo detainees. She was an associate at a corporate legal firm and filed amicus shorts to support challenges to Bush administration’s detention policies. These included the arrest of an enemy combatant on U.S. territory as a lawful permanent residence without any charges.
Her first opinion on D.C. Circuit Court, Jackson wrote on behalf of the 3 0 panel a decision that struck down a Trump administration policy which had reduced the bargaining power for labor unions representing more federal employees than a million. She joined a three-judge circuit court ruling in December 2021 that disallowed Trump’s claim of executive privilege to withhold White House documents from the House committee investigating the January 6 insurrection.
When she was a federal district judge, Jackson penned a strong opinion in 2019 rejecting a claim made by Donald McGahn — Donald Trump’s White House Counsel — who argued that he had absolute immunity from testifying before a committee of the House of Representatives. Jackson famously wrote, “Presidents are not kings,” adding, “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” And when she was on the district court bench, Jackson voted to stop the Trump administration’s efforts to fast-track deportations.
Biden is also believed to be considering Leondra Kruger of the California Supreme Court. She worked for Judge David Tatel and Stevens in the D.C. Circuit Court. Kruger also served as deputy assistant attorney general in Obama’s Justice Department’s Office of Legal Counsel and as acting principal deputy solicitor general in the Obama administration. She has a mixed record on Fourth Amendment cases — writing one opinion that said police couldn’t search a woman’s purse without a warrant after she refused to produce a driver’s license, and another opinion upholding a California law requiring that police collect DNA samples and fingerprints from all people arrested for or convicted of felonies.
Michelle Childs is in the running for Breyer’s seat. Since Obama nominated her in 2010, she has been a U.S. District Judge. Biden nominated Childs as a D.C. District Judge. Circuit Court in December 2021. But, her nomination was postponed because she is a candidate to the Supreme Court.
Rep. James E. Clyburn, D-South Carolina, is supporting Childs. He is the third most powerful Democrat on Congress. His endorsement of Biden’s candidacy was pivotal in his election as president and Clyburn urged Biden to appoint Childs to the D.C. Circuit Court. Both GOP senators from South Carolina — Lindsey Graham and Tim Scott — strongly back Childs. When Scott was asked if he would support another nominee for the nomination, he said that he would. Graham replied, “It would be much more problematic,” even though he was one of three Republicans who voted to confirm Jackson to the D.C. Circuit Court. Sen. Joe Manchin (D-West Virginia) also praised Childs, calling her “a tremendous, tremendous candidate.” Unlike many other prospective candidates, Childs, who attended University of South Carolina School of Law, does not have an Ivy League pedigree.
But Childs is not favored by progressives because she “overwhelmingly represented employers accused of violating civil rights and gender discrimination laws in the workplace,” The American Progressive reported.
Former prosecutor Leslie Abrams Gardiner in Georgia is being considered for the role of Breyer’s replacement. Gardiner represented large companies such as Bank of America, Google and others before her appointment to the bench. Her sister is Stacey Abrams, a voting rights activist.
Sherrilyn Ill, president and chief counsel of the NAACP Legal Defense and Education Fund where she has worked to protect voting rights and fight against discrimination and police brutality, is one of the non-judges in this candidate pool.
Some racist Republican senators are already preemptively attacking Biden’s nominee. Roger Wicker (R-Mississippi) said in a radio interview that anyone Biden chooses would be a beneficiary of “affirmative racial discrimination.”
Sen. Elizabeth Warren (D-Massachusetts) told HuffPost, “The Republicans have already moved beyond racial dog whistles and directly to racial sirens. They’ve done it for a Supreme Court nominee before anyone has been named,” adding that they “have decided they would rather stir up an ugly portion of their base rather than try to evaluate these candidates on their own.”
The filibuster doesn’t apply to Supreme Court nominees, however. All Democrats and some GOP senators, including Collins, Graham and Murkowski, will probably support Biden’s choice. Childs may be the front-runner with Clyburn putting in all the effort to get her on the Court. As Annie Karji wrote in The New York Times, “It is a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court and, perhaps, the most consequential test yet of the Biden-Clyburn relationship.”
Now is the right time for activists to voice their concerns and push for a truly progressive Supreme Court Justice who will likely serve decades.
