A Reprieve for American Democracy

Joe Biden’s nomination of Ketanji Brown Jackson to the Supreme Court of the United States offers a golden opportunity to remake the image of the nation’s democratic safeguards. Our contributor decodes a process that has been undermined in recent years.

The announcement of Justice Stephen Breyer’s retirement from the United States Supreme Court on Jan. 27 did not create shock waves. At 83, the fact that he is the oldest justice on the bench made his departure inevitable — even eagerly awaited by members of President Joe Biden’s team.

This departure will in effect assure the Democrats of the possibility, before the midterm elections, of replacing the justice, nominated by President Bill Clinton and part of the liberal wing, with Ketanji Brown Jackson, also liberal and currently a judge on the most prestigious federal appeals court in the United States.

Even if Jackson will not shake up the ideological composition of the court once confirmed by the Senate, which will hold hearings from March 21-24, this nomination is historic; she would become the first African American woman ever to sit on the Supreme Court.

Jackson’s nomination also highlights this crucial power granted to a president, whose decisions affect American lives for decades.

From 1 President to the Next

This leverage held by the White House occupant is, however, not guaranteed. It all hinges on chance and the composition of the Senate, which has the final word.

If President Richard Nixon were able to practically replace the entire court in only his first term by successfully having four of his nominations confirmed, President Jimmy Carter could not seat a single one. The same can be said for President George W. Bush during his first term.

In only his second year in the White House, Biden enjoys the opportunity to leave a mark that will no doubt long survive him.

For many Democrats, it is likely a very small consolation prize. Donald Trump’s four years saw the conservative majority on the court consolidate itself, the 45th president having made a trio of nominations that were hard for them to swallow.

Remember that in 2016, the last year of the presidency of Barack Obama, Justice Antonin Scalia, one of the most conservative on the bench, died suddenly in his sleep, giving Obama the opportunity to replace the justice nominated by President Ronald Reagan in 1986.

But the majority Republican Senate blocked any consideration of the judge nominated by Obama until Trump’s arrival to the White House more than a year later. He chose a new judge, Neil Gorsuch, whom Senate Republicans rushed to confirm. This was Trump’s first nomination.

In 2018, Trump nominated Brett Kavanaugh to replace Justice Anthony Kennedy — another Reagan nominee, though more centrist. The public hearings in the Senate descended into a national psychodrama when Kavanaugh was accused of sexual assault by, among others, Professor Christine Blasey Ford. Kavanaugh was confirmed in the Senate by the thinnest margin in history, 50 to 48.

Then, in 2020, 50 days before the presidential election, the oldest justice on the bench and the most progressive of the liberal wing, Justice Ruth Bader Ginsburg, died. Trump selected Amy Coney Barrett to replace her, a judge considerably more to the right. The Republican Senate that dragged its feet for 10 months on the last Obama nomination in 2016 expedited the confirmation process for Barrett to less than a month, allowing her to be sworn in less than a week before Election Day.

The Democrats saw red — and themselves as victims of an injustice, with some considering extreme measures like the possibility, once in power, of adding seats to the court to reduce the conservative majority.

But this idea is risky for the credibility of the institution. Each time one party controls the government, it would only have to add seats to dilute the majority established by the preceding administration. The court, having long enjoyed more credibility than the president or Congress, could be perceived as a crude extension of political power.

Justice Breyer himself saw fit to come out last year to issue a public warning about the potential misdeeds that would loom over the court with such a reform. The idea seems, at least for now, to have been buried, following the work of a commission established by Biden to study Supreme Court reform.

In choosing Jackson, the president opted for someone who could win over every Democrat — and, perhaps, even a handful of Republicans in the Senate.

An alternative scenario could have easily unfolded where Breyer, like Ginsburg before him, holds on and steps down, possibly due to natural causes, after Republicans retake the Senate in November and where the latter prevents Biden, as they did Obama, from filling the seat until a Republican president, such as Trump, returns to power.

In their best-selling book, “How Democracies Die,” political scientists Steven Levitsky and Daniel Ziblatt caution against practices they call “constitutional hardball,” pushing the constitutional limits of a country to the extreme solely for partisan gains without consideration of the effects on the democratic and social fabric. This ultra-partisanship around Supreme Court nominations is a principal example they cite as a factor contributing to the erosion of democracy.

By replacing Breyer with Jackson, Biden will not necessarily revolutionize the Supreme Court. Even so, he will have the opportunity to restore, if only temporarily, the image millions of Americans have of democracy in their country.