The retirement of long-time Supreme Court Justice (and Cambridge resident) Stephen Breyer brings to mind the looming reform the court may face in the near future.
First, there is the question of life tenure for Supreme Court justices. The Constitution provides life tenure for members of the court in order to bolster its independence from outside pressures, and also to provide some measure of long-term consistency in the court’s rulings. To be sure, the doctrine of stare decisis places precedential decisions made by the court at the forefront. (Stare decisis is, in fact, Latin for “to stand by things decided.”) In 1984, then-Chief Justice William Rehnquist delivered the majority opinion in a murder case, Payne v. Tennessee, stating that “stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Life tenure assures a justice that he or she will not be tossed into the trash bin of history as a result of an unpopular decision. By maintaining the same set of justices for many years instead of circulating through new ones every few years, the court stays consistent and reliable. Breyer has been a strong supporter of life tenure and the role of precedent. He has gained a reputation for following precedent even if he does not personally approve of an earlier ruling. In this regard, his integrity stands above more opportunistic justices, and his devotion to the court’s integrity sets him apart from several of his colleagues.
Along with life tenure, the number of seats on the court holds equal significance. The court has gone through major seating changes, fluctuating between five and 10 seats until resting at nine justices today. What is evident is the political value that expanding the court would have ― more justices means an increased likelihood of having a less conservative pool of opinions, or a more liberal pool if Democrats are in control. However, there lies the problem: Meshing politics with the court quashes the court’s independence and neutrality, without which decisions cannot be made without bias. There is also no doubt that expanding the court will create a tug-of-war between the liberal jurists and the conservative jurists, generating a highly politicized court.
After Breyer’s recent retirement announcement, news of Biden’s short list of potential justices was circulated. At the head of that list are four Black female judges who are members of lower courts. Indeed, during his presidential campaign, Biden declared that he would nominate a Black woman to the court and has stuck with this promise. However, despite the appeal of having a diverse court in terms of race and gender, there remains the issue of Biden’s approach to achieving diversity. Instead of simply making clear to the public that his choice would depend on legal skill, experience, and wisdom, Biden said that he will give priority to race and gender.
Biden’s statement creates the impression that these candidates are somehow inferior because they have been tapped for the short list based on their race and gender. It would have been much wiser for Biden to have said that he will select the best candidate for the job, forget about a “short list,” and then nominate a woman of color. It would eliminate the subtle but clearly inevitable insinuation of inferiority attached to the nominee, all of whom, by the way, are clearly qualified for the job on their merits.
This is just the latest example of the downside of affirmative action — the practice, notwithstanding its stated good intentions, implies that the very people it seeks to uplift have not risen to the role based on their earned merits.
The bottom line is that if Biden’s stated criteria emphasize race and gender, he will be succumbing to the progressive movement’s pressure and diminishing the integrity of the court and potentially thwarting progress toward true racial equity. Equally disturbing would be the grave disservice he would be doing to what is likely to be a superb nominee.
Harvey Silverglate is a criminal defense and civil liberties lawyer and writer currently practicing in an “of counsel” capacity in the Boston firm of Zalkind, Duncan & Bernstein.
