A Black Woman on the Supreme Court: It’s a Good Start

February 24, 2022 by

In 2015, Supreme Court Justice Ruth Bader Ginsburg said that there would be enough women on the U.S. Supreme Court when there are nine. It’s time we go a step further and ensure that these nine women come from diverse backgrounds. President Biden is doing just that with his confirmation that he will nominate a Black female to the Supreme Court consistent with a campaign promise. His announcement quickly received unwarranted backlash, including the criticism that he should appoint a qualified candidate as opposed to focusing on a specific race and/or gender. This presupposes that there are no qualified, Black women to appoint. On the contrary, the bench of accomplished, skilled female minorities is deep and wide. In fact, this point is not debatable and unworthy of discussion.

For most of our country’s history, race and gender were prerequisites to being considered for an appointment – ie: being white and male. Of the 114 justices who have served on the Supreme Court, 107 have been white males. There have been two Black, male justices – Thurgood Marshall and Clarence Thomas; five female justices – Sandra Day O’Conner, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett; and one Hispanic justice– Sonia Sotomayor. The fact that a president is intentionally reaching into the qualified pool of minority women for a Supreme Court appointment should be praised and recognized as a necessary step to preserve the legitimacy of the Court by having it more closely reflect our country’s ever-growing diverse population.

In 1967 when the Supreme Court issued its opinion in Loving v. Virginia, a case involving an interracial couple charged with violating Virginia’s antimiscengenation statute after marrying in DC and returning to their home in Virginia, there were no black or female justices on the court. The Court correctly held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment and properly recognized an individual’s right to marry a person of another race. Still, the Court may have come to this decisions years or decades before if it had been comprised of diverse justices.

In 1973 the Court recognized a women’s right to have an abortion in the landmark case Roe v Wade. Once again, the Court correctly interpreted the Due Process Clause of the Fourteenth Amendment and the right to privacy, but it did so without a single female hearing or ruling on the case. It is nonsensical that nine men and no women would rule on an issue that is so intrinsic to women’s rights. If women had been appointed to the Supreme Court before 1973, would reproductive rights have been recognized earlier than they were?

Maybe, maybe not. But the point is that the decisions that affect all of us in our country should be decided by justices who resemble us, understand us, and can relate to us. Adding diversity to the Supreme Court is a step towards achieving that and a step towards a larger goal. As Gandhi said, “Our ability to reach unity in diversity will be the beauty and the test of our civilization.”

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Heather FullerAttorney

Heather Fuller, a seasoned litigator with extensive federal experience, has handled cases in courts across the United States.  Her innovative approach to each case, coupled with her sound judgment and ability to solve complex problems, makes her a strong advocate for her client.

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