In a way, we are used to seeing black women judges. Or at least black women to play the judges on TV and in the movies. Think of Judge Hatchett. Or the black woman judges in “Legally Blonde”. Or “Primal Fear”. Or “The Next Big Thing”. There is even a Reddit thread on the number of black female judges on screen.
But in reality, being a black and female judge is a scarcityso much so that many conservatives decried President Biden’s promise to appoint a black woman to the United States Supreme Court as affirmative action.
Never mind that presidents have long considered demographics in their Supreme Court appointments, including religion and geography. President Reagan campaigned to nominate the first woman, and did so with his nomination of Justice Sandra Day O’Connor.
But now that Biden has done so, he has announced the nomination of Justice Ketanji Brown Jackson, a DC Circuit Court of Appeals judge whose identifiers stand up to any current member of the court – now seems like the perfect time to ask: what could this mean for a black woman on the Supreme Court?
This issue goes beyond the historical significance that, of the 115 justices who have served on the Supreme Court since the founding of this country, Jackson will be only the third black person and the first black woman. Or the fact that Jackson herself is in many ways an embodiment of the difference the court can make, from decisions such as Brown v. Board of Education end de jure segregation in schools, Gideon v. Wainwright granting indigent defendants the right to an appointed attorney (Brown was a federal public defender), to Love against Virginia overturning laws against interracial marriage (Brown’s husband is white).
The story is important, but the question I’m asking is slightly different. What would it really mean to have a black woman on the Supreme Court?
Role of race and gender in decision making
During his DC Circuit confirmation hearing, Senator John Cornyn (R-Texas) asked the question this way“What role does race play, Judge Jackson, in the type of judge you have been and the type of judge you would be?”
The question was reminiscent of the “wise Latina” questions put to judge Sonia Sotomayor when it was confirmed in court.
Of course, white candidates are not asked how their whiteness will play a role in their judgment, perhaps because the white senators asking the questions already know the answer. Or they equate whiteness with baseline, neutrality. Or maybe senators are genuinely curious.
We had never had “wise Latina” justice before Sotomayor was confirmed. And Jackson, if confirmed, will be the first black female judge. How are you going to judge? And what role will racing play?
During his confirmation on the DC Circuit, Jackson answered that question like Sotomayor did during his Supreme Court confirmation hearings. It would be inappropriate to consider race in judging a case, Jackson responded. But she hoped her unique life experiences would help the court.
It’s a measured response, the kind of response designed to calm and soothe. This is the answer, one suspects, that any candidate is trained to give if he hopes to be confirmed.
Recently, I was involved in a book project in which jurists, almost all people of color, rewrote dozens of landmark Supreme Court decisions – from Plessy v. Ferguson for Korematsu for Roe vs. Wade for Terry v. Ohio– to imagine how these decisions could have been made differently if a justice open to racial differences, and in fact open to critical race theory, had been on the ground and had been able to gather a majority.
At a time when the CRT is under attack and the court embraces “color blindness” even as it entrenches an unequal status quo, these scholars offer a vision of Supreme Court decision-making that is more inclusive, reinforces rights, and is emancipatory.
Life experience matters
What vision will Jackson bring to court, assuming she is confirmed and becomes an associate judge? I do not know.
But I hope she will bring all of herself, including her life experience, to her judgment. And it’s a life experience where race matters and gender matters.
For her, just being a black female judge is a facade, just like hiring a black actress to play a judge. But to see her take the bench and judge as a black woman — as someone who personally knows that America is still becoming what it should be, a place where we all belong — that’s what I hope and what I look forward to. That’s why I’m here.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Bennett’s capers is Professor of Law and Director of the Center on Race, Law and Justice at Fordham Law School.