On Wednesday, NBC News reported that Justice Stephen Breyer is planning to retire from the Supreme Court. The report follows months of pressure from progressive activists who expressed concerns that President Joe Biden would not be able to appoint Breyer’s successor should Democrats lose their narrowest of Senate majorities in the 2022 midterms.
For the next several weeks, there is one question that will animate the conversation around the future of the court: Who will the next justice be?
Biden has narrowed the field through a campaign pledge to nominate the court’s first Black woman justice. There is also a clear front-runner: United States Court of Appeals for the District of Columbia Circuit Judge Ketanji Brown Jackson.
It’s no certainty that Brown Jackson will be the nominee, but after a successful 53–44 circuit court nomination vote last year and a good amount of speculation around her elevation, it seems likelier than not that the former Breyer clerk will soon sit on the nation’s highest court.
For his part, Biden said during his campaign that he had put “together a list of a group of African American women who are qualified and have the experience to be on the court” and suggested he might share that list with the public, as Donald Trump did with a list of possible Supreme Court nominees during his winning presidential campaign in 2016. Ultimately, though, Biden never made his list public, saying after Justice Ruth Bader Ginsburg’s death near the end of 2020—when it was still unclear if Trump would be able to force through an appointment on his way out the door—that naming the potential nominees would be a disservice to them.
Brown Jackson is likely near the top of Biden’s list for a few reasons. She meets the criteria he has set out and she is also someone who could likely win a Senate confirmation fight in a Senate controlled by moderate Democrats Kyrsten Sinema and Joe Manchin. Still, Biden’s short list also reportedly includes California Supreme Court Justice Leondra Kruger and South Carolina District Court Judge J. Michelle Childs.
Brown Jackson’s 2012–13 confirmation process to the D.C. District Court after being appointed by President Barack Obama and to the D.C. Circuit last summer went relatively smoothly. In 2013, she was confirmed by voice vote of the Senate. Last year, three Republicans—Sens. Lindsey Graham, Susan Collins, and Lisa Murkowski—joined all 50 Democrats in voting for her circuit court confirmation, with 44 Republicans in opposition and three abstaining.
While any fight over Brown Jackson’s possible Supreme Court nomination would be likely to generate more sparks, the stakes are lowered by the fact that even if Biden’s nominee is approved, conservatives have a crushing 6–3 advantage on the court that is likely baked in for years to come. Also, Brown Jackson has bipartisan bona fides, with former Republican Speaker of the House Paul Ryan—who is a family member of Brown Jackson’s by marriage—having praised her during her December 2012 district court nomination hearing.
“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal,” Ryan said at the time. “She’s an amazing person, and I favorably recommend her consideration.”
Further, GOP members of the Senate Judiciary Committee struggled to come up with any decent line of attack on Brown Jackson during last year’s appellate court confirmation hearings. The best that Sens. Ted Cruz and Chuck Grassley could do at the time was to vote against her because, to their minds, she did not endorse originalism as a judicial doctrine strongly enough. (Grassley had previously praised Brown Jackson’s work to come up with more just sentencing policies as part of a federal sentencing commission.) Brown Jackson replied that she had “not had any cases that have required me to develop a view on constitutional interpretation of text” in response to a question from Cruz about the idea of a “living Constitution.” Ultimately, Cruz cited this as a reason to vote against her.
Sen. Thom Tillis, meanwhile, criticized Brown Jackson because MSNBC host Rachel Maddow praised her for a major ruling in a Trump-era case on the limits of presidential power. “I have no control over what reporters say about my rulings,” Brown Jackson responded at the time. Sen. Josh Hawley used a similar guilt-by-association attack on Brown Jackson, questioning whether she supported statements opposing abortion rights and marriage equality made by a shuttered Christian school on whose board she previously served. Hawley said he agreed with the statements of the Christian school, and Brown Jackson responded she had served on many boards and might not agree with “all of the statements that those boards might have in their materials.” If this is all the ammunition Republicans intend to bring to a Supreme Court nomination fight, then it’s unlikely to break a united Democratic conference—which Brown Jackson could need to be confirmed if she loses the support of the Republicans who were open to her appellate-level nomination.
Brown Jackson, through her place on D.C. courts, has had a critical hand in some of the most important cases checking the presidential overreach of the Trump era. In a 2019 opinion, Brown Jackson issued a ruling saying that White House Counsel Don McGahn did not have absolute immunity from congressional testimony discussing any abuses of office he witnessed as documented by the Mueller report. In doing so, Brown Jackson issued one of the most thorough and forceful rulings against Trump of his entire time in office. “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” she wrote. She added that the Trump administration’s broad claims of absolute immunity “distort established separation-of-powers principles beyond all recognition” and that she refused to abide “DOJ’s less-than-subtle suggestion that, under our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, ultimately, the President wields virtually unchecked power.”
More recently, Brown Jackson was part of a three-judge circuit court panel that issued a ruling in December that said that Trump’s claims of executive privilege as part of his effort to block the National Archives from turning over materials to the House Select Committee to investigate the Jan. 6 attack was overly broad. Last week, the Supreme Court vindicated that decision as well, refusing to stay the circuit court’s ruling and allowing the archives to turn over the materials (while also implying disagreement with the circuit court’s suggestion that a current president’s decisions on executive privilege generally override those of a former president). The strength of these anti-Trump rulings, and how well they were received at the appellate and Supreme Court levels, also makes them a weaker point of potential attack for Republicans in any new nomination fight.
In these cases, Brown Jackson’s rulings have been vindicated in some of the most important issues on executive power that the Supreme Court has ruled on in years.
Brown Jackson also brings her experiences working to make the justice system fair and equitable. Earlier in her career she worked as a public defender, helping indigent defendants navigate the criminal justice system. She also brings expertise from her time as vice chair of the federal sentencing commission from 2010 to 2014. As part of that commission, Brown Jackson helped to “make retroactive a reduction in penalties for crack cocaine, resulting in over 12,000 people being eligible to request reduced sentences,” the legal activist group Demand Justice has reported. In announcing the decision, Brown Jackson said: “Today the commission completes the arc that began with its first recognition of the inherent unfairness of the 100:1 crack/powder disparity all those years ago. I say justice demands this result.”
During her time on the district court, Brown Jackson ruled in more than 550 cases. Those included progressive rulings on abortion rights, labor law, immigrant rights, and the rights of the disabled.
While Brown Jackson seems to be in the strongest position to receive the nomination, there are two other possibilities that have garnered serious attention. Some have argued that in the interest of diversity on multiple fronts, Biden should nominate California Supreme Court Justice Leondra Kruger. While her background as a deputy solicitor general of the United States is certainly in line with the experience of other recent nominees, such as Justice Elena Kagan, she also brings unique experience as state court judge. Nobody on the current court—and nobody since Justice David Souter’s retirement in 2009—has served on a state court. Kruger would also be only the fifth justice from the country’s largest state, California, and just one of two justices on the court from a state west of the Mississippi.
South Carolina District Judge J. Michelle Childs, meanwhile, was nominated to the D.C. Circuit last month and would offer educational diversity to the court, having attended University of South Florida for undergraduate studies and having received her law degree from University of South Carolina School of Law. Currently, every member of the court except for Justice Amy Coney Barrett has received a bachelor’s, a law degree, or both from an Ivy League school. No current justices have these degrees from state schools. (Kruger received her bachelor’s from Harvard and went to law school at Yale, while Brown Jackson received both degrees from Harvard.) Childs also has going for her the support of House Majority Whip Jim Clyburn, whose endorsement in the South Carolina Democratic primary in February 2020 was critical to Biden’s eventual elevation to the presidency.
If for some reason Biden decides to go another direction than these top three candidates, he will be able to pick from an expanded pool of possible candidates, having appointed a record number of Black women to the federal judiciary in his first year of office. As the 19th reported last week, Biden has nominated eight Black women to 13 U.S. Courts of Appeals openings with five already confirmed, an effort that will double the number of Black women to have ever served on the judiciary at the circuit level.