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The Supreme Court, equality, equity and the rule of law

Gavel, Court
Reuters

Associate Supreme Court Justice Stephen Breyer has announced his retirement effective at the commencement of the court’s summer recess in late June or early July, thus ending his 28-year tenure on the highest court in the land.

This gives President Biden an opportunity to nominate Breyer’s replacement. This is an important event that will have a long-term impact on American public policy. This guarantees a lively summer and early fall in the nation’s capital.

In recent years, the nomination and confirmation of a Supreme Court justice generates tremendous controversy. Why?

The Supreme Court sits at the apex of the Judicial Branch, one of the three supposedly “co-equal” branches of the Federal Government, alongside the Legislative and Executive Branches.

The Marbury v. Madison Supreme Court decision in 1803, established “judicial review,” the legal principle that gives the Supreme Court the constitutional right to strike down laws passed by the Legislative Branch and signed by the Executive Branch, if a Supreme Court majority deems that legislation “unconstitutional.”

Consequently, the Supreme Court is one of the most important institutions in American life and it is comprised of only nine Supreme Court justices, each of whom has a lifetime appointment.

So, every time a Supreme Court vacancy occurs, the president has the opportunity to nominate, and the Senate to confirm, or reject, that individual appointment. Once confirmed, that newly-minted justice will usually serve on the Court for more than a quarter-century.

By any meaningful measure, this reality makes a sitting Supreme Court justice potentially one of the most powerful and influential figures in American public life for a generation or more. It may not be quite on par with being President, Speaker of the House, or Senate Majority Leader, but it usually lasts a lot longer chronologically.

The intensity of debate generated by Supreme Court judicial confirmations underscores the extent to which the Court and its unelected justices have usurped Americans’ right to govern themselves.

Since the last half of the 20th and for the first quarter of the 21st centuries, contrary to what the founders intended, a majority of the Supreme Court’s justices have gathered unto themselves an excess of power in relation to the Executive and Legislative Branches of the Federal Government. “Judicial Review” has degenerated into judicial imperialism.

Contrary to what the Founding Fathers intended, the Supreme Court has become the sun in its own solar system, with the Congress and the Presidency reduced to the secondary role of orbiting planets.

This decades-long overreach has been somewhat checked by the addition of President Trump’s three Supreme Court nominees, Gorsuch, Kavanaugh and Barrett.

President Biden’s pending appointment, however, will in all likelihood, move the Court in a leftward direction by replacing the more pragmatic, consensus-seeking, left-leaning Breyer with a full-throated liberal if President Biden’s nominees to the lower courts are any indication.

This nomination process will be further complicated by the fact that President Biden, while running for president in 2020, promised that his first nominee to the Supreme Court would be a “black woman.”

President Biden made this campaign promise as his support for the Democratic presidential nomination was flagging. Rep. James Clyburn, D-S.C., suggested such a pledge to shore up his popularity among African Americans, his most loyal constituency.

Now, the time has come for the President to fulfill his campaign pledge and there is no doubt he will do so. The political problem for the president is that while his most loyal supporters will be delighted by such a nomination (and outraged if he went back on his promise), a significant majority of the general electorate is strongly opposed to such blatant identity politics being applied to a Supreme Court nomination.

A recent ABC News/IPSOS poll found that 76% of the American electorate expressed the belief that we should not mandate a candidate be black or female to be eligible for nomination to the nation’s highest court.

Given the extreme influence and impact a Supreme Court justice can exercise on our nation, it is encouraging that Americans want every Supreme Court justice to be the most qualified and capable person available, regardless of the immutable factors of ethnicity and gender.

At this point, it is important to make it clear that the most qualified candidate for the Supreme Court may well be an African American woman. However, the odds are against finding that candidate if we exclude all other candidates who are not black women. Assuming that the nominees will be a lawyer, only 2% of the nation’s attorneys are black females. Severely restricting the pool of eligible candidates to be considered diminishes the odds of finding the most qualified candidate rather dramatically.

And, restricting candidates to only black women, is profoundly unfair to the eventual nominee. Even if she is the most qualified person, it will be difficult for her to be accepted as such because all others were disqualified from the selection process.

And it must be asked, is President Biden breaking the nation’s civil rights laws? I know that if the CEO of a business or a public university said they were going to select someone to be their next President or CEO only from those who are black females, they would face a myriad of lawsuits for violating the civil rights of those who were excluded from consideration based on race, ethnicity or gender.

As constitutional scholar Jonathan Turley has observed, “This type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses.”

A brief survey of Supreme Court decisions helps to illustrate the line President Biden may have crossed by his pledge to only consider black female candidates for this Supreme Court seat. In Regents of theUniversity of California v. Bakke (1978), the Supreme Court ruled “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake” and is forbidden by the Constitution.

In the years following, some racial preferences in university admissions survived through appealing to “'diversity’ rationales, in which race was a factor but not the dominant one.” 

In 2003, the Supreme Court clarified what was permissible and what was not in evaluating two University of Michigan admission initiatives. As constitutional scholar and George Washington University law professor Jonathan Turley explained:

“In Grutter v. Bollinger, they upheld one that evaluated applicants based on individual merit, then used race as a ‘plus factor.’ In Gratz v. Bollinger they rejected one that applied individual considerations after a ‘threshold’ use of race. (Justice Breyer voted with the majority in both cases.)”  

President Biden’s expressed criteria would seem to fall into the latter category of Gratz v. Bollinger which the Court rejected as unconstitutional. 

The critical issue here is that President Biden is declaring not that diversity is a “plus factor” as he considers candidates of varying backgrounds and genders, but that he will only consider black females for the position. This goes farther than Presidents Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama ever went on judicial nominees.

As a final note, if we are going to elevate diversity to such a lofty status as a criterion, I want to suggest that President Biden’s nominee add to the diversity of the Supreme Court by picking someone who graduated from either a public university and/or a public law school since none of the current justices have done so. The eight remaining justices (after Breyer’s retirement) include six who graduated as undergraduates from Ivy League schools (Princeton, 3; Yale, 1; Harvard, 1; and Columbia, 1) and 7 who graduated either from Yale (4) or Harvard (3) Law Schools.

That is a very narrow slice of the American societal pie. Surely we can find a highly qualified black woman candidate who graduated from one of the thousands of America’s public universities or law schools.

Dr. Richard Land, BA (Princeton, magna cum laude); D.Phil. (Oxford); Th.M (New Orleans Seminary). Dr. Land served as President of Southern Evangelical Seminary from July 2013 until July 2021. Upon his retirement, he was honored as President Emeritus and he continues to serve as an Adjunct Professor of Theology & Ethics. Dr. Land previously served as President of the Southern Baptist Convention's Ethics & Religious Liberty Commission (1988-2013) where he was also honored as President Emeritus upon his retirement. Dr. Land has also served as an Executive Editor and columnist for The Christian Post since 2011.

Dr. Land explores many timely and critical topics in his daily radio feature, “Bringing Every Thought Captive,” and in his weekly column for CP.

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