In the wake of Justice Stephen Breyer’s announcement of his retirement, President Joe Biden is set to have the opportunity to nominate a new justice to the bench. In keeping with his promise on the campaign trail, Biden has decided that he will only seek an African American woman to be his nominee, in a continued effort to promote equality and diversity throughout government. This promise has been the subject of much criticism, particularly from his opponents, though public opinion seems to be against the exclusion of other potential candidates as well, with an ABC/Ipsos poll finding that Americans overwhelmingly believe that “Joe Biden should ‘consider all possible nominees’ (76%) rather than ‘consider only nominees who are Black women, as he has pledged to do’ (23%).” Despite what may be inferred from the wide unpopularity of the move, there is no problem with Biden nominating a Black woman to the Supreme Court—the problem is that he said he would.

The Choice of Nominee

The Purpose of the Supreme Court 

The Supreme Court, as established by the Constitution and cases such as Marbury v. Madison, is intended to interpret and apply the laws established by the legislature, chief among them being the Constitution of the United States. Thus, they are intended to apply the structure instantiated by a previous society upon the current society. The deepest established structure, the Constitution, can therefore be considered a limitation on the democracy of the current society. Justice Antonin Scalia, condemning the “reading” of new meaning into the Constitution, pointed out that “the Constitution takes out of the democratic process certain particular items, and you’re tampering with democracy when you remove items that the people really never agreed to remove.”

The job of the Supreme Court is not to effectuate new law in accordance with the will of the people. As such, the best possible combination of individuals to sit on the Supreme Court would not be a group who is supremely capable of understanding the desires of the population—this could jeopardize the Court’s very role of safeguarding against tyranny of the majority. Instead, the optimal bench should include those who can most effectively respect and protect the Constitution’s limitations on modern society while not extending those limitations beyond their intended bounds.

The Identity of the Justices

So, then, is the set of identities represented on the Supreme Court important? To the end of the Court’s purpose, the answer is no. The Supreme Court could perfectly well be made up of aliens or zombies who happen to be surprisingly good at interpreting and applying the Constitution, and the Court’s function would still be carried out to its fullest extent. The moment that the constitutionally unenumerated values of the current society have infected the bench, the institution’s course has been perverted. Therefore, the “lived experience” of potential nominees to the Court should be of no concern when determining whether an individual is suitable for the job.

However, the Court’s legal purpose, when viewed pragmatically, is not its only societal function. In his “Cornerstone Address,” Chief Justice Charles Evans Hughes spoke on the Court’s role in society, saying “The republic endures and [the Court] is the symbol of its faith.” The Supreme Court maintains faith in American democracy. This view of the Court gives merit to the argument that the Supreme Court should be representative of the population. The American people may take more stock in the institutional integrity of the Court if it were representative of the country, irrespective of whether that diversity affects the Court’s operations.

Race as a Factor for Nomination

Since a share of the responsibility of the Court is to preserve the integrity of government in the minds of the people, it is thus reasonable to factor race into the selection of a nominee.  However, this can only be done within the confines of the group of individuals most qualified to sit on the Court. In practice, this will not make a difference, as there are undoubtedly Black women who are fit for the Supreme Court seat, but the placement which this factoring of race takes in the nomination process is still important to ensure respect for the eventual nominee and to succeed in the institutional integrity insurance the choice is intended to make in the first place.

The eminent justifiable case of the inclusion of race as a factor for nomination was the selection of Clarence Thomas. He was nominated to take the seat of former Justice Thurgood Marshall, the first African American to serve on the court, but it was obvious that Thomas’s race was not the sole or even primary cause of his selection. He had been on the short list for President George H. W. Bush’s first nomination (which eventually went to David Souter), so his relevance to the conversation was there even before race was brought into it. Thus, his nomination, likely based in part on race, did not throw confidence in his suitability for the bench into question.

President Biden’s Error in Order

President Biden’s fundamental error in this ordeal is not the inclusion of race as a factor in selection; it is the use of the factor as the first and most important condition in his nomination. The President could have reasonably commissioned a list of those individuals most qualified to fill the vacancy, then weighed the identities of those on the list in making his final determination, but he instead took the inverse approach. By initially declaring that he would choose only from a pool of Black women, he skips a likely inconsequential yet technically and optically necessary step of first ensuring that his short list contains only those fit for the bench of the Court.

In terms of the observable effect on the competence and quality of the Supreme Court, the President’s choice will not make a difference. The Black woman he nominates will almost certainly be as qualified to join the bench as any other candidate. However, because Biden’s actions have technically forgone the most important step when choosing a justice—verifying the quality of all candidates on the short-list—his promise will surely have the opposite of its intended effect. Instead of increasing the faith Americans have in the Court, his decision has both unduly thrown confidence in his nominee into question and detracted from the Court’s integrity, the very integrity which he initially set out to protect.