With Breyer’s exit, all SCOTUS progressives will be women

The Supreme Court announced the first trio of cases it will hear during its 2022-2023 term. All of them are legally substantial. And by this fall, President Joe Biden’s choice for Justice Stephen Breyer’s replacement will likely be considering them. At that point, the court’s ideological configuration will remain 6-to-3, with conservatives firmly in control. But the new justice will no doubt change the face of the Supreme Court (which has been on a negative political trajectory since former Senate Majority Leader Mitch McConnell (R-Ky.) denied President Barack Obama his constitutional prerogative to fill a vacancy in 2016).

After Breyer leaves, all the progressives will be women: Justices Sonia Sotomayor, Elena Kagan and Biden’s nominee. For the embattled conservative majority, a steady drumbeat of exclusively female dissents in politically charged cases will not look good.

To be sure, Biden’s vow to choose a Black woman for the position has drawn criticism. Sen. Roger Wicker (R-Miss.) cynically suggested that any such person would be a “beneficiary” of affirmative action. Sen. Susan Collins (R-Maine) complained that Biden’s approach “adds to the further perception that the court will be a political institution like Congress, when it is not supposed to be.” (Meanwhile, it’s Collins who in 2018 unnecessarily cast the critical vote to put Justice Brett Kavanaugh on the court rather than find a less controversial Republican candidate.)

The critics’ comments ignore the mostly male and mostly white legacy of what has become perhaps the most supremely powerful — yet unelected — institution of government in the land. For the first 178 years of the court’s history, only white males were tapped to decide the constitutional rights of everyone else. Justice Thurgood Marshall was the first African American selected for the court — one of only two in its history, with Justice Clarence Thomas succeeding Marshall in 1991. Of the 115 justices to have served on the high court, only five have been women, despite the fact that women comprise 50.8 percent of the total U.S. population.

So, what would it mean if a mostly male majority makes sweeping changes to the Constitution over the objections of an all-female minority? This term, the court has on its docket three biggies when it comes to polarizing legal issues: abortion, guns and religion. 

Breyer apparently plans to stick around to have a say in the Dobbs v. Jackson Women’s Health Organization ruling, in which the court will decide whether states can ban all pre-viability abortions. It has the potential to overrule Roe v. Wade, which protects women’s autonomy over pregnancy up until 24 weeks’ gestation.

The court will also decide whether its limited precedent protecting handgun ownership in the home under the Second Amendment will extend to ban regulation of firearms outside the home.

And in Carson v. Makin, the court could draw a new red line requiring states to use taxpayer dollars to fund religious education, essentially erasing the longstanding legal separation between church and state.

Breyer’s vote won’t change the outcome of these cases. That will be dictated by conservatives that now include Justice Amy Coney Barrett. Yet, his measured pragmatism could find its way into a dissenting opinion.

So far, the cases on the docket for the fall don’t have the same headlining appeal, but their potential impact on the Supreme Court’s posture as a policy-making powerhouse is unmissable. The court will consider whether to overrule its prior precedent allowing institutions of higher education to use race as a factor in admissions decisions by effectively banning affirmative action. It will decide whether challenges to the Federal Trade Commission’s structure can be brought directly in federal court rather than in the agency in the first place — an issue that could wind up putting more power in the Judicial Branch by stripping the agency of its authority to hear certain cases. And it will determine what wetlands can be regulated by the Environmental Protection Agency under the Clean Air Act — again inviting the court to dilute a federal agency’s power while aggrandizing its own.

To be clear, there’s nothing unusual about the Supreme Court deciding whether the Constitution and acts of Congress confine certain behavior, such as the ability of universities to consider race in its admission decisions, or the ability of federal agencies to take certain actions. What’s unusual is that this conservative majority is poised to continue pushing legal boundaries that were settled — like the Constitution’s protection of abortion and affirmative action — without having to get the buy-in of moderate justices. Because the conservatives’ dominance is now completely unchecked, there’s not much that progressives on the court can do on behalf of the majority of the populace anymore. But the optics of mostly male edicts in the face of all-female dissents will underscore Breyer’s concern that “If the public sees judges as politicians in robes, its confidence in the courts and the rule of law itself can only diminish.”

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle