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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 to 3 split in favor of the right-wingers will not change. But each new member transforms the dynamics of the court. “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.
Breyer cast a smaller percentage of liberal votes than any other Democratic appointee with whom he served on the court (Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan), according to a January 24, 2022, report by professors Lee Epstein, 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.
In 2013, Breyer cast the deciding vote to reach a 5 to 4 majority in Maryland v. King, joining John Roberts, Clarence Thomas and Samuel Alito. They held that police could take DNA samples without specific suspicion of criminal activity or consent from anyone arrested for a serious offense, just for the purpose of investigating other crimes.
Breyer once again cast the fifth vote for police in the 2016 case of Utah v. Strieff. Edward Strieff was stopped with no probable cause or reasonable suspicion after which police discovered he had an outstanding warrant. The court said the prosecution could use the evidence against Strieff because the warrant was independent of the illegal stop. This case gives the police an incentive to violate the Fourth Amendment because they know illegally seized evidence will still be admissible in court.
Likewise, Breyer provided the fifth vote in favor of police in Navarette v. California, a 2014 case in which the court held that an anonymous tip that a person was driving erratically would support a traffic stop 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 its ranking system gave an automatic point increase to racial minorities instead of making individualized determinations. John Paul Stevens, David Souter and Ginsburg dissented.
Unlike Sotomayor, who voted with the majority to uphold the affirmative action program at the University of Texas, Breyer dissented in the 2016 case of Fisher v. Univ. of Texas. The 4 to 3 majority held that the use of ethnicity and race as admission factors was narrowly tailored for a compelling interest in diversity.
In 2014, Breyer did not join Ginsburg and Sotomayor who dissented in 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.
Over the dissents of Ginsburg and Sotomayor, Breyer voted with the majority in the 2018 case Masterpiece Cake Shop v. Colorado Civil Rights Commission. The court held 7 to 2 that the cake shop could refuse on religious grounds to bake a wedding cake for a same-sex couple.
Biden’s Nominee Should Be a Progressive Black Woman
Biden has vowed to name a Black woman to 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. Of the 115 justices who have served on the Supreme Court, 108 have been white men. The current court has no former public defenders or civil rights attorneys.
Likely candidates to replace Breyer have very different records on social justice issues.
The most progressive jurist reportedly under consideration is Ketanji Brown Jackson. A judge serving on the U.S. Court of Appeals for the District of Columbia Circuit, Jackson was confirmed to the position vacated by Atty. Gen. Merrick Garland by a Senate vote of 53 to 44 last year. 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 appointed Jackson to be a U.S. district court judge in 2012. Jackson, who graduated with high honors from Harvard College and was editor of the Harvard Law Review at Harvard Law School, clerked for Breyer.
Having served as a public defender, Jackson would be the only Supreme Court justice to have represented criminal defendants since Thurgood Marshall. Jackson represented several Guantánamo detainees. When she was an associate at a corporate law firm, she filed amicus briefs that supported challenges to Bush administration detention policies, including the detention of a lawful permanent resident arrested on U.S. soil as an enemy combatant with no charges.
In her first opinion on the D.C. Circuit Court, Jackson, writing on behalf of the 3 to 0 panel, struck down a policy instituted by the Trump administration that had curtailed the bargaining power of labor unions representing more than a million federal employees. 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 reportedly considering California Supreme Court Justice Leondra Kruger. She clerked for Stevens and Judge David Tatel of 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. She has served as a U.S. district judge since Obama nominated her in 2010. Biden nominated Childs to the D.C. Circuit Court in December 2021, but her nomination was put on hold because she is a candidate for the Supreme Court vacancy.
Childs is supported by Rep. James E. Clyburn (D-South Carolina), the third most powerful Democrat in 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 asked whether he would support another nominee, 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, a federal judge in Georgia, is also being considered to replace Breyer. Before her appointment to the bench, Gardiner represented large corporations including Bank of America and Google. Her sister is voting rights activist Stacey Abrams.
Non-judges in the candidate pool include Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund, where she has worked for voting rights and against job discrimination and police brutality.
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.”
But fortunately, the filibuster does not apply to Supreme Court nominees. All Democrats and some GOP senators, including Collins, Graham and Murkowski, will probably support Biden’s choice. Childs, however, may well be the front-runner, with Clyburn pulling out all the stops 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 time for activists to make their voices heard and push for a truly progressive Supreme Court justice who will likely serve for decades.Copyright © Truthout. May not be reprinted without permission.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory board of Veterans For Peace and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.