by Blake Fox
On January 27, 2022, Stephen Breyer, an Associate Justice of the United States Supreme Court, announced his retirement. His retirement will go into effect during the Court’s summer recess on the condition that his successor has been confirmed by the Senate.
President Joe Biden’s pick to be the 116th Supreme Court Justice will replace Breyer and have a large void to fill on the Court. For followers of the Court, there are many questions and much speculation about whom Biden will end up nominating. But for many Jewish followers, one question instantly came to mind: Will President Biden continue the tradition of the Court’s Jewish seat? As it is unofficially known, the Jewish seat is a seat on the Court that has been occupied by a Jew—except for the tenure of Harry Blackmun, who was a Methodist—for the past 100 years. In that time, five Jewish Justices—Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, and Breyer—all occupied the seat. Complicating the issue of Biden continuing the tradition of the Jewish seat is that he has already committed to nominating the first African-American woman to the bench. However, California Supreme Court Justice Leondra Kruger, who is on Biden’s shortlist of potential picks, is of Jewish descent and, if appointed to the seat, would continue the tradition of having a Jewish Justice in the seat.
Outside of the Jewish seat, three other Jews have served on the United States Supreme Court: Louis Brandeis, Ruth Bader Ginsburg, and Elena Kagan. Kagan, who remains a member of the Court, could be a factor in Biden opting not to continue the tradition of the Court’s Jewish seat and instead nominating Ketanji Brown Jackson, J. Michelle Childs, or another Black woman to the Supreme Court.
While some conservatives have expressed outrage at Biden for promising to nominate a Black woman to the Supreme Court, the existence of the Court’s Jewish seat shows that identity picks by a President are relatively common. For instance, President Lyndon B. Johnson famously nominated Thurgood Marshall to the Supreme Court, making him the first Black Justice. However, audio recordings of President Johnson revealed that part of his reasoning for selecting Marshall was to reiterate his support for civil rights. Marshall’s replacement, Clarence Thomas, was almost certainly chosen in part by President George H.W. Bush to ensure that an African American Justice remained on the Supreme Court. In addition, Ronald Reagan famously promised to put a woman on the Supreme Court, which he later did with his nomination of Sandra Day O’Connor.
Historically, Presidents have also made Supreme Court nominations with geographic diversity in mind. The nominations of the Wyomingite Willis Van Devanter by President William Howard Taft and the Alabaman Hugo Black by President Franklin D. Roosevelt are two examples. Of course, it did not hurt that these Presidents wanted to increase or maintain party support in these geographic regions. Along these same lines, Taft opted not to appoint Louis Marshall, a Jew, to the Supreme Court, in part because he had overwhelmingly won Jewish voters in the 1908 Presidential election and did not think he would have room to grow Jewish support in 1912. Similarly, then-presidential candidate Dwight D. Eisenhower promised California Governor Earl Warren a seat on the Supreme Court to ensure Warren supported his candidacy in the general election.
During his retirement speech at the White House, Justice Breyer said, “There are more than 330 million people, and my mother used to say it’s every race, it’s every religion — and she would emphasize this — and it’s every point of view possible. And it’s a kind of miracle when you sit there and see all those people in front of you, people that are so different in what they think. And yet they’ve decided to help solve their major differences under law.” As Justice Breyer said, Americans put their faith in the Supreme Court as an institution to make decisions according to the law. For Americans to have trust and confidence in the Court, the Court must look like America. That means having Justices bring their racial, religious, ethnic, and geographic perspectives to the Court. An example of this from the current Court is Justice Neil Gorsuch. An originalist, whom President Donald Trump nominated, Gorsuch has consistently joined the Court’s more liberal nominees during his tenure to side with Native Americans and tribal rights. It is certainly not a coincidence to conclude that Gorsuch, the Court’s only Westerner (Breyer was born in California but lives in Massachusetts), has been influenced in these decisions by his geographic upbringing and time on the Tenth Circuit hearing similar tribal cases. Gorsuch displays why all forms of diversity are essential on the Supreme Court and why President Biden should continue to advance these efforts.
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