Ideas
March 18, 2022 9:33 AM EDT
Shaw is a professor of law at Cardozo Law School and one of the hosts of the Supreme Court podcast Strict Scrutiny.

Well before he was the Democratic nominee for President, Joe Biden pledged that if given the chance, he’d nominate the first Black woman to the Supreme Court. The announcement that he’d consider both race and sex in selecting a Supreme Court nominee—that his decision would be race- and sex-conscious, rather than “blind” to those characteristics—was perhaps more explicit than previous such pledges. But it was no different in kind from, for example, President Ronald Reagan’s pledge to put the first woman on the Supreme Court.

Following Justice Stephen Breyer’s January announcement of his retirement, President Biden made clear that he intended to follow through on his campaign promise, vowing from the White House that when replacing Justice Breyer, “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.”

Biden’s doubling down on his campaign promise was met, perhaps predictably, with charges from the right that Biden’s pledge was “offensive”; that his eventual nominee would be the beneficiary of a “quota”; that Biden’s process entailed elevating “skin color over qualifications.”

Read More: What Ketanji Brown Jackson Will Be Asked During Her Confirmation Hearings

There’s every reason to believe that any selection process would have led the President to his nominee, Judge Ketanji Brown Jackson. Judge Jackson is superbly qualified by the standards of any era. She’s not only a brilliant legal mind, but also as credentialed as a nominee gets: top legal degrees and clerkships, broad and deep experience in both government and private practice, and nearly a decade of distinguished service on the federal bench, including her current seat on the D.C. Circuit, where Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh all served before being elevated to the Supreme Court.

Why, then, did Biden remain so public and so explicit about his selection criteria? It was no doubt partly political: Black women are an incredibly significant political constituency for the Democratic party writ large and for Biden personally, and appointing the first Black woman to the Supreme Court both communicated Black women’s political importance and provided a tangible deliverable. Biden’s insistence that the Supreme Court should “look like the country” also reflected an important set of substantive commitments: that all Americans should be able to see themselves reflected at the highest levels of government; that the backgrounds and life experiences of those on the Court inevitably inform the Court’s decisional processes; and that for too long those processes have been shaped by white men—once exclusively, still primarily.

What is less appreciated is that in explicitly centering race and gender in his selection process, President Biden was engaging in an act of presidential constitutionalism. Presidents, not just courts, engage in constitutional interpretation; Presidents shape constitutional meaning beyond their selections of justices who will render decisions in constitutional cases. President Thomas Jefferson’s refusal to initiate prosecutions under the Sedition Act, and his pardons of those convicted under it, flowed from his belief that the law violated the Constitution. Presidents since FDR have issued executive orders prohibiting discrimination, and later requiring affirmative action, in federal employment and federal contracting. The Obama Administration’s announcement that the President had concluded that the Defense of Marriage Act was unconstitutional, and that his Administration would no longer defend it, both reflected the President’s constitutional views and may have impacted the Supreme Court’s ultimate determination that the law must be struck down.

Read More: What Ketanji Brown Jackson Could Bring to the Supreme Court

Critics of Biden’s pledge to consider race and sex are aligning themselves with the conservative majority on the current Supreme Court, some of whom have suggested that all considerations of race by government are deeply constitutionally suspect. This is not an abstract commitment; rather, next term, the Justices may be poised to enshrine that view into law: first, in a pair of cases involving race-conscious admissions in higher education, in which the Court may well overturn its 2003 decision in Grutter v. Bollinger and hold that the Constitution prohibits virtually all race-conscious admissions policies in colleges and universities; second, in a case involving the Indian Child Welfare Act, in which the Court is considering whether the statute’s placement preferences discriminate on the basis of race.

If the Supreme Court invalidates one or more of these policies, its rulings will likely be predicated on the logic that all considerations of race are equally pernicious; that there is no constitutionally salient difference between policies that consider race in order to promote values like classroom diversity and the production of graduates prepared to flourish in a pluralistic society, on the one hand, and policies that consider race in order to promote white supremacy, on the other.

Read More: The History Behind the First Black Woman Supreme Court Justice Nominee

The Supreme Court didn’t always view things this way. For decades, the Court has been engaged in an active debate about how and why different uses of race should be scrutinized differently. For a brief moment, a majority of the Court agreed that some “benign” uses of race—uses of race designed to promote diversity and remedy underrepresentation, for example—were subject to only “intermediate” scrutiny, rather than the “strict” scrutiny that is required when the government engages in invidious discrimination. When the Court retreated from that view, in 1995, Justice John Paul Stevens wrote in dissent that “there is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.” Those sentiments echoed Justice Thurgood Marshall’s writing in Regents of the University of California v. Bakke, nearly 20 years earlier. As Justice Marshall explained in that case, “It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race … I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.”

Many conservative commentators, and a likely majority of the current Supreme Court, either do not see, or wish to elide, the distinction between invidious racial discrimination and race-conscious actions that seek to address past discrimination or to promote diversity. But that does not obligate the President to accede to that view. That’s particularly true when it comes to selecting a Supreme Court Justice, where there’s broad agreement that the President’s authority is at its apex. Biden’s selection process was properly informed by his views of the principles and values the Constitution should promote, and his public embrace of those values represented an important use of the bully pulpit to advance an expansive and context-sensitive vision of constitutional equality.

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