The surprising liberal consensus emerging about Biden's Supreme Court decision

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Whoever President Joe Biden nominates to the Supreme Court is likely to spend at least the first decade, and possibly much more, of her tenure on the losing side of many key rulings decided by the court’s conservative, Republican-appointed majority.

The surprising liberal consensus emerging about Biden's Supreme Court decision
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That stark prospect, though rarely discussed, looms as perhaps the most important factor that will shape the term of Biden’s selection, who he has promised will be the first African American woman named to the high court. And it’s stirring debate in liberal legal circles about the judicial approach the President should be seeking in his nominee. At its essence, the choice reduces to a single question: Should Biden pick a conciliatory “bridge-builder” or a confrontational “truth-teller”?

Given how often the President has stressed his desire to work with Republicans and unify the country, many liberal interest groups closely watching the process believe he will favor a nominee he can present as a bridge-builder who will seek consensus wherever possible on the court. Biden signaled that inclination during his remarks when Justice Stephen Breyer announced his retirement. The President lauded him as “a model public servant in a time of great division in this country” and praised his outreach to justices across the ideological spectrum. Breyer, Biden declared, “patiently sought common ground and built consensus, seeking to bring the court together.”

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But many legal observers, including key voices in the civil rights and civil liberties groups central to the Democratic coalition, are dubious there will be many opportunities on big issues to reach any agreement with the six-member Republican-appointed bloc, which has quickly demonstrated its determination to move the law sharply to the right on issues from voting rights to religious freedom and abortion. In that environment, many in these groups prefer what some call a “truth-teller” more in the mold of Justice Sonia Sotomayor, who will write stinging dissents that both shape public opinion today and provide a road map for future Supreme Courts to overturn the conservative majority’s rulings.

“I would say it appears unlikely that you are going to find someone who will serve as a bridge-builder, a Lewis Powell or for that matter a Sandra Day O’Connor,” says longtime civil rights strategist Wade Henderson, now the interim president of the Leadership Conference on Civil and Human Rights, referring to two earlier centrist GOP-appointed justices. “The divide [on the court] is now too pronounced to have someone knowingly stepping into that role. I would hope he looks for someone who is capable of speaking truth to power with an eloquence and a substantive knowledge of the law in a way that helps to lay, through their opinions, the ground for a reform of the court going forward.”

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The first ‘great dissenters’

The prospect of spending years in the minority after joining the court might be somewhat daunting for whoever Biden selects. Yet through the court’s history, some justices who have endured years in such a precarious position have influenced the course of the law with powerful dissenting opinions. That’s the tradition that many advocates hope the President will look to as he makes his choice.

“It’s a generational appointment,” says Fatima Goss Graves, president and CEO of the National Women’s Law Center. “It may be true that because of the current composition of the court that the [Democratic-appointed] justices find themselves too often in dissent. But we’ve also seen that the dissents of today can become the guiding principles of tomorrow.”

The tradition of justices known primarily for their dissents stretches back to John Marshall Harlan, who was appointed in 1877 by Republican President Rutherford B. Hayes. As author Peter Canellos observed in his 2021 biography, “The Great Dissenter,” “Before Harlan, dissenting opinions in Supreme Court cases were few and far between—strange and often unnoticed footnotes. Harlan turned the act of dissenting into something more significant: an appeal to the next generation of jurists. He spent thousands of hours holed up under gas lamps creating doctrines that would find their true light in the electric future.”

Serving for more than three decades on the deeply conservative court of the late 19th and early 20th centuries, Harlan voted against a succession of rulings limiting government’s ability to regulate business or impose an income tax. But he’s best remembered as the sole dissenter on the landmark 1896 Plessy v. Ferguson ruling, which authorized “separate but equal” racial segregation. Harlan’s ringing denunciation of the decision, Canellos says, became “the bible” for civil rights lawyers like Thurgood Marshall, later a Supreme Court justice himself, through the 20th century, and ultimately was vindicated in the court’s 1954 Brown v. Board of Education decision invalidating segregation in the schools. “I think [Harlan] believed his dissents would be appreciated over time,” Canellos says. “I think he would envision the conversation we are having right now.”

Harlan’s mantle was next seized through the early 20th century by Justices Oliver Wendell Holmes Jr. and Louis Brandeis, who issued a procession of powerful dissents to another conservative majority court. Many of those were on cases in which the majority voted to strike down public regulation of business, but Holmes and Brandeis are remembered even more for their dissents asserting an expansive right to free speech. Brandeis’ dissents in particular anticipated a succession of landmark rulings under Chief Justice Earl Warren validating free speech rights during the 1960s — and have led legal historians to call Brandeis “the acknowledged master of the judicial dissent,” as one put it.

Thurgood Marshall himself became a powerful dissenter, particularly on capital punishment and civil rights cases, after the liberal Warren court he had joined in 1967 tipped to become a conservative majority only a few years later. “His passionate vision came through in his dissents and was so important, obviously not in changing the results, but in educating the American public about the high stakes involved in Supreme Court decisions,” says Nan Aron, the recently retired founder and president of the Alliance for Justice, a leading liberal judicial advocacy group. “Decades of law students, decades of students studying civics, have read his dissents.”

More recently, two justices may have most clearly stepped into this tradition. On the right, the late Justice Antonin Scalia, though serving on conservative-majority courts, issued impassioned dissents on issues from abortion to same-sex marriage to federal regulation on the occasions when some Republican-appointed justices allied with Democratic appointees to generate more liberal decisions; those dissents have inspired the younger generation of conservative GOP appointees now pursuing more fundamental challenges to liberal precedents on all those fronts.

Democrats see Sotomayor as the modern exemplar of a “truth-teller” on the court. Particularly on the cases involving Texas and Mississippi laws retrenching the right to abortion, she has been withering in her denunciations of the majority’s decisions. She’s warned in oral arguments that overturning the constitutional right to abortion established in Roe v. Wade will create a “stench” around the court, and, in a written dissent, decried the majority’s refusal to block the Texas law allowing citizens to sue anyone involved in providing an abortion after fetal cardiac activity is detected. The court’s refusal to end the “madness” of the Texas law, she wrote, “betrays not only the citizens of Texas, but also our constitutional system of government.”

Deploying to a war zone

Not everyone in liberal legal circles believes Biden must tilt his choice toward someone in this dissenting tradition. Erwin Chemerinsky, dean of the University of California at Berkeley Law School, told me in an email that Biden needs to take a very long view in the selection. “Of course … the new justice is likely to be in the bottom of a lopsided minority for the next decade or even two,” he wrote. “But Biden should be picking the Justice the Democrats will want there in 2040 and 2050. It should be a strong progressive who will articulate a progressive vision, even if in dissent. Ideally, too, it will be someone who might put together coalitions for progressive results.”

Still, among liberal-leaning legal analysts, there’s a widespread consensus that the opportunity for such coalition building will be exceedingly rare for many years. Several I spoke with argued that the nominee Biden needs for a court with a lopsided 6-3 conservative majority is different from what he might select for a narrow 5-4 split in which Chief Justice John Roberts represented an occasionally persuadable swing vote.

“If there was a 5-4 court, Biden might want someone who is more moderate and who might negotiate with the chief [Roberts], but with this 6-3 court I don’t think there is much of an opportunity for reaching out,” says Paul Butler, a law professor at Georgetown University Law Center. “Most of the conservative justices are hard-core right-wing ideologues, and people like [Clarence] Thomas and [Samuel] Alito have been waiting for this moment and this court for decades. So on issues like affirmative action and abortion they are not in a negotiating mood or posture.”

Two other characteristics of the six-member GOP-appointed majority may influence Biden’s thinking. One is its relative youth: Absent health issues, this same conservative bloc could dominate the court well into the 2030s, given that its oldest members (Thomas at 73 and Alito at 71) may serve for at least another decade. The other is its ambition and aggressiveness: Particularly in its handling of the Texas and Mississippi abortion cases, this majority has clearly signaled its willingness to tilt the law sharply to the right, even if that means overturning long-standing precedent. The GOP-appointed majority has shown that it will be “very aggressive on fundamental issues, not bound by precedent, and not bound by convention or practice,” says Deborah Archer, a professor at New York University Law School and president of the American Civil Liberties Union.

Taken together, all of this has produced a consensus in liberal-leaning legal circles that Biden will be deploying his nominee into the legal equivalent of a war zone. And that consensus has coalesced into a dominant preference for him to pick a warrior — not in her personal relations with the other justices, but in her approach to the job.

“Understandably, the President is seeking bipartisan support for his candidate, and certainly I would assume this is a very strategic decision on his part to set out a criteria of someone who, among other things, is a consensus builder,” says Aron, who now teaches law at Georgetown. “But I think perhaps at this moment in time, it’s simply wishful thinking that anyone can persuade the three Trump justices and others to move.”

Henderson agrees. “One reason Sonia Sotomayor stands out … is her willingness to speak truthfully and forcefully as to what she sees is happening, and I think Justice Breyer’s replacement needs to be someone in that mold,” he told me.

Likewise, Archer says that given the limited opportunity for agreement with the conservative majority, Biden should prioritize a justice who will sharpen the public debate “about race and inequality” and make clear “the true impact of the court’s decisions” as it rolls back previously accepted rights in arenas from abortion to affirmative action to voting.

Assessing the short listers

For many of the analysts and advocates within Democratic legal circles, viewing Biden’s potential nominees on this spectrum from bridge-builder to truth-teller offers a revealing lens through which to assess his options.

Two of Biden’s potential picks are cited most often as coming closest to the Breyer model of focusing primarily on building internal coalitions and trying to sand down the sharpest edges of the conservative majority’s decisions. Those potential nominees are California Supreme Court Justice Leondra Kruger and federal district Judge J. Michelle Childs, who is being promoted by close Biden ally Rep. James Clyburn of South Carolina. Though each draws praise for her qualifications, many civil rights and civil liberties groups consider both too moderate, not only in ideology but also temperament, to directly confront the challenges the GOP-appointed majority is likely to present to liberal causes in the coming years.

Both on and off the record, a surprising number of those I spoke with cited the same name as the potential nominee who could prove the most dynamic dissenter and “truth-teller”: Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund.

“From their records, Sherrilyn Ifill would be the best at writing passionate, erudite dissents that get talked about because people can understand them,” says Butler. “She’s got the skills in terms of messaging, a keen lawyerly grasp of the issues and she’s very charismatic.” The prospect of Ifill joining Sotomayor to dissent from the court’s conservative drift, he says, “would make the court more exciting for progressives … even if there are not enough votes to change the law in the short term.”

The consensus front-runner, Judge Ketanji Brown Jackson, of the US Court of Appeals for the DC Circuit, may occupy a position somewhere near the midpoint on the axis from bridge-builder to truth-teller. As a former Breyer clerk, she’s not considered likely to confront the majority as directly as Ifill might, but, as a former public defender, neither is she perceived to be as restrained in her approach as, say, Kruger. Jackson’s starkly worded 2019 decision batting down an expansive claim of executive privilege from then-President Donald Trump — “Presidents are not kings,” she wrote — suggests that “we could potentially see that same fire in dissents” on the Supreme Court, notes Butler.

Whoever Biden selects is virtually certain to face resistance from almost all Republicans. Carrie Severino, president of the conservative Judicial Crisis Network, told me conservatives will mobilize against any Biden selection they view as too liberal, regardless of how they balance conciliation and confrontation in their approach to the court. “At the end of the day the most important thing is how that person approaches the law, not what their personal style is,” she says. “The Democrat short listers are ones who are going to be uniform in the way they are going to vote on the court.”

The White House has signaled to allies that Biden’s decision will not be influenced by public signals from some Senate Republicans that they might be more receptive to Childs in particular than others. Yet many liberal legal analysts believe that Biden’s desire to win at least some Senate Republican support will discourage him from making any selection, like Ifill, seen as especially provocative to the GOP, or even to the most conservative Senate Democrats. (At 59, Ifill is also older than the other major alternatives.)

“He is more inclined to pick someone who reflects the traditions of what court picks were at an earlier point in time, and he is comfortable with that,” the leader of one liberal legal group, who asked for anonymity to discuss their view of internal White House deliberations, told me. Jackson, who generally draws praise from the left but also won three GOP Senate votes for her confirmation to the DC Circuit Court of Appeals, may occupy the sweet spot as well between a pick seen as either provoking or deferring to Republicans.

In a tenure that could last decades, whoever Biden picks isn’t likely to ever play only one role or even to remain static in how she balances the “bridge-building” and “truth-telling” roles.

“I actually think that the nominee’s approach will be her own, and that is OK,” says Goss Graves. “She will not model herself after Breyer or Sotomayor or any other justice. Her approach and perspective will be one that is important and possibly new.”

Yet one thing is guaranteed: With a staunchly conservative majority likely to retain control of the court for years, whoever Biden selects will need to take a long view of her potential influence on American life. The best compass for Biden’s choice may be the words of Benjamin Cardozo, a celebrated New York state judge who later served in the minority of a conservative-dominated Supreme Court during the 1930s. “The voice of the majority may be that of force triumphant, content with the plaudits of the hour,” he once declared. “The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years.”

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