Social “Firsts” and the Supreme Court

A few days ago, Stephen Breyer announced his retirement from the Supreme Court of the United States at the end of the current term.  Because Joe Biden pledged to nominate a black woman to the nation’s highest court if he became president, he now has an opportunity to make good on that pledge.  Predictably, we began to hear and see a lot of high-minded (and hypocritical) commentary about how Biden should be choosing the “most-qualified” justice–regardless of their skin color.  Our attention span as a country is so short, we’ve already forgotten that Trump’s rise to the presidency was powered at least in part by publicizing a Federalist Society-authored list of high court nominees he would choose from if the opportunity presented itself.  We’ve already forgotten that Ronald Reagan promised to name a woman to the Supreme Court.

But the history of using the Supreme Court to accomplish social firsts stretches back much further than we might suppose from current commentary.  This thread by David Frum takes us all the way back to 1887, when President Grover Cleveland appointed Lucius Quintus Lamar to the high court in a bid to gain the support of conservative white southern Democrats for re-election.  Read Frum’s thread in full to get a complete sense of how unrepentant a Confederate Mr. Lamar was.  This dubious social first—the appointment of a traitor to the Union to nation’s highest court–would prove very important for a reason not fully touched on at all in Mr. Frum’s thread.  1887 marked the year the US federal government fully abandoned Reconstruction–and the nation’s black citizens to decades of voter disenfranchisement, terrorism, property theft, murder, and Jim Crow laws.

No discussion of the Supreme Court and social firsts would be complete without mentioning Maryland’s own Thurgood Marshall.  He earned his undergraduate and law degrees from 2 HBCUs (graduating 1st in his class from Howard Law because the University of Maryland School of Law was still segregated).  Out of 32 cases he argued before the Supreme Court, Marshall won 29, losing just 3.  He served as a federal appeals court judge for the second circuit for a number of years prior to becoming the nation’s first black solicitor general.  Some months of his tenure as an appeals court judge were served as a recess appointment due to certain southern senators holding up his official appointment, including the same segregationist James Eastland that Joe Biden recalled a civil relationship with.  He would win 14 cases on behalf of the government in that role, losing just 5.  Among his peers both at the time and since, there may not be a more successful justice at winning arguments before the Supreme Court prior to becoming a member of it.

Discussing the legal and rhetorical brilliance of Thurgood Marshall requires discussion of his successor.  Few nominations to the high court are a better demonstration of the hypocrisy of many of today’s conservatives regarding “qualifications” (including those who oppose Trump) than the absence of such concerns being raised when Clarence Thomas was nominated to the Supreme Court.  In contrast to the years served as an appellate court judge and solicitor general by Marshall, Thomas was an appellate judge for the DC circuit for just 16 months.  Thomas graduated in the middle of his law school class at Yale in contrast to Marshall’s 1st in class at Howard.  The White House and Senate Republicans apparently pressured the American Bar Association (ABA) to give Thomas a qualified rating even while attempting to discredit the ABA as partisan–and this is before Anita Hill’s interview with the FBI was leaked to the press and led to the re-opening of Thomas’ confirmation hearings.  The same GOP that loves to quote that one line from that one speech of Dr. Martin Luther King, Jr. could not have cared less about “the content of [Thomas’] character”.  They cared that he was both conservative and black.  The way the Senate treated Anita Hill during those re-opened confirmation hearings would in retrospect be a preview of the treatment awaiting future black women appointees to federal roles.

How Thomas fared during his confirmation hearings almost certainly animated the treatment of Lani Guinier after her nomination to become assistant attorney general for civil rights by Republicans.  Her treatment by them, conservative media, and by the White House who nominated her was utterly shameful.  Conservatives lied about her positions.  The same Joe Biden who contributed to the poor treatment that Anita Hill received before the Senate Judiciary Committee he chaired 2 years earlier, reported “grew lukewarm about Guinier”.  President Clinton would ultimately withdraw the nomination in the face of lies and distortions about her writings.  His administration had apparently instructed her not to make any public statements about until after he’d already decided to withdraw her nomination, enabling her opponents to smear her in the press and her “allies” to get cold feet about supporting her.  Particularly now as a wave of anti-CRT legislation, book bans, and attacks on affirmative action gain traction around the country (especially in light of Guinier’s recent death), it is important to remember that Guinier only got to make her case to the public in one interview with Ted Koppel–and the public received her views well.  She never got the Senate hearing that even Robert Bork got for his extreme views because Bill Clinton–her friend from Yale Law School–pulled her nomination instead.

Not even two weeks have passed since the annual hypocrisy-fest that is MLK Day, and a significant majority of Americans surveyed seem to have decided once again that black women should wait for what should be theirs.

The attacks on the first black woman Supreme Court nominee will be fierce (if Biden follows through on his commitment).

When it comes to the Supreme Court and credentialism however, perhaps the best example of the double standard that seems to exist for women generally is the brief nomination of Harriet Miers.  Conservatives in particular dragged this woman for her lack of elite education (she earned degrees in mathematics and law at Southern Methodist University).  Only in looking back did I learn that Harry Reid (Senate minority leader at the time) actually recommended Miers as the successor to O’Connor, and that other members of the Senate Judiciary Committee hoped to see nominees from outside the federal appellate court system.  Perhaps because Reid earned his law degree in George Washington University’s part-time program, he didn’t put as much stock in an Ivy League pedigree as he did in bringing the perspective of an experienced practicing lawyer to the Supreme Court.  Potential conflict of interest concerns raised by Miers’ relationship with President Bush and his staff might ultimately have sunk her nomination anyway had she not withdrawn it.  By contrast, Clarence Thomas has ruled in numerous cases where he had clear conflicts of interest with little or no criticism from his supporters on the political right.

Considering the sorts of cases which will soon come before the Supreme Court, we should remember that as an institution it has been used as often as a tool to remove and restrict rights as it has to grant them (if not more so).  The aforementioned appointment of Lucius Lamar is not the only time that the Supreme Court has been used to undermine full citizenship for black people in the United States.  Before William Rehnquist became associate justice (nominated by Nixon), then Chief Justice of the Supreme Court (nominated by Reagan), he was a “poll watcher” in Arizona under the auspices of Operation Eagle Eye, a nationwide campaign by the Republican National Committee to suppress black votes.  This 2021 piece by Charles Pierce makes a convincing argument Rehnquist tried to pass off his personal opposition to the ultimate outcome of Brown v Board of Education as that of the justice he clerked for (Robert Jackson, Jr).  In this memo, he defended Plessy v Ferguson as good law, and likely lied about it in both of his Supreme Court confirmation hearings.  From the time he became one of Rehnquist’s law clerks, to replacing him as Chief Justice of the Supreme Court, John Roberts has had the Voting Rights Act in his sights as a law to be weakened (if not destroyed).

Contrary to the polls (and numerous previous demonstrations of an utter lack of spine), Lindsey Graham has emerged as a supporter of the idea of a black woman nominee to the Supreme Court.  Current US District Court judge J. Michelle Childs of South Carolina being a possible nominee certainly doesn’t hurt.  If the current shortlist is any indication, any of the black women Biden selects from it will be just as qualified–and likely more so–than any of their colleagues at the time of their selection.  It wouldn’t surprise me if Biden chose Breyer’s former clerk (Ketanji Brown Jackson) to succeed him.  But as a state university graduate myself, part of me hopes that someone with at least one degree from outside the Ivy League gets selected.