Are You Ready for Another Supreme Court Battle?

It may feel like we all just got done with the last Supreme Court battle, but it is apparently nearing time for another one. According to the New York Times, Justice Stephen Breyer—a liberal-leaning member of the court—is expected to retire as early as this summer, which means Democrats have already begun trying to influence Biden’s choice for his replacement.

Biden has not yet released a list of potential nominees, which Trump (very unusually) did on the campaign trail in 2016, before he had even been elected to office. But Biden has made one campaign promise related to his vision for shaping the court: During the presidential debate in Charleston, Biden pledged to nominate a Black woman. “I’m looking forward to making sure there’s a Black woman on the Supreme Court,” he said at the time, “to make sure we in fact get every representation.”

Many Democrats would also like to see a nominee from a non-Ivy League background, to combat Republicans’ portrayal of the party as being elitist and to bolster the “Middle-Class Joe” image Biden tried to impress on voters during his campaign.

But there’s an implicit tension between the nominee Democrats want, and the one they (cynically) think has the best chance of being confirmed with the party’s slim majority. “It’s going to have to be someone who has unquestioned credentials so it doesn’t look like it’s an unqualified person,” an unnamed senior Biden administration official told the Times.

It’s difficult not to think of another approaching Supreme Court battle with dread. While it is now a Democratic president making the appointment, it does not get the court any closer to a liberal majority. If Biden does make good on his promise and nominate a Black woman to the bench, one can only begin to imagine the kind of interrogation she’ll face—no matter how unimpeachable her credentials are. The way to make the court more amenable to progressive interests, and to avoid messy partisan fights and power grabs during the confirmation process, would be to radically remake it. Until then, perennial Supreme Court-related dread is ours to love and cherish.