First Black Woman Nominated to the US Supreme Court

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US Supreme Court Justice Stephen Breyer announced his retirement from the Court on January 27, 2022.

Although United States Law has no jurisdiction over Canada, the effects of American case law and legal tradition on Canadian jurisprudence have been noted throughout history.

On Friday, February 25, Judge Ketanji Brown Jackson was nominated to the Supreme Court of the United States — set to be the first Black female Justice in the court’s 233-year history. 

The Supreme Court of the United States (“SCOTUS”) is the highest court in the federal judiciary system and houses nine justices. 

After nearly 28 years serving on the Court, it was anticipated that Justice Breyer would resign before the Court takes its summer recess, either in late June or early July. Justice Breyer had been facing political pressure from the left to retire while a Democratic President, Joe Biden, was in power.

At a February 2020 debate, then candidate Biden promised to nominate the first Black woman to the Supreme Court, and this year, while honouring Justice Breyer’s retirement, he reiterated this commitment. 

“The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden stated at the White House on January 27, 2022. “It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.”

Judge Jackson was among the three Black female jurists speculated as potential nominees: Judge Ketanji Brown Jackson, Justice Leondra R. Kruger, and Judge Michelle Childs. She is currently serving on the US Court of Appeals for the Columbia Circuit, in past having clerked for the retiring Justice Breyer. 

Known in the legal community  for her meticulously detailed decisions, Jackson has had multiple high-profile rulings over her eight years on the Federal District Court. 

Jackson is expected to sit on the Court for years to come, as she is currently 51 years of age. Though she will certainly bring fresh perspectives to the court, in the short term her impact may not be tangible. 

The basic ideological balance of the Court will not be altered with the appointment of Breyer’s predecessor. The current make up of the court as six conservative Justices nominated by Republican presidents and three liberal Justices nominated by Democrat presidents will remain, as Breyer, one of the Court’s liberal Justices will be replaced by Jackson, another liberal Justice. 

For the majority of its history, only White men have sat on the Supreme Court, but the addition of more diverse Justices has led to material changes in the lives of Americans. 

In specific, after the addition of the first justice of colour, Justice Thurgood Marshall, the Court narrowly found certain applications of the death penalty to be cruel and unusal punishment. In 1996, the last male-only US public university, the Virginia Military Institute, was required to accept female applicants by the Court, following the inclusion of two women on the court: Justices Sandra Day O’Connor and Ruth Bader Ginsberg. The only person of colour on the court in 2002, Justice Clarence Thomas, wrote in a famous ruling that cross burning was reminiscent of the Klu Klux Klan’s “regin of terror.”

The Supreme Court of the United States has a notable impact on the Canadian legal system, so though rulings from SCOTUS do not directly alter Canadian Law, they often do so indirectly.

A June 2020 paper examining the relationship between Supreme Court of the United States and Canadian jurisprudence by Eugene Meehan, the significant number of references to SCOTUS decisions made by the Supreme Court of Canada (“SCC”)  is explored. The paper details that “[a] search of S.C.C. decisions dating back to 1877 (approximately 11,000) reveals that Canada’s top court has explicitly mentioned the Supreme Court of the United States in at least 267 decisions.” It goes on to note that these references were made across a variety of areas of law. 

The paper notes that although not referenced as frequently as the Supreme Court of the United Kingdom, “the SCC has consistently cited, referred to, disagreed with, and even actively endorsed SCOTUS Opinions.”