On [Jan. 27] (https://www.thehofstrachronicle.com/category/news/2022/2/15/justice-stephen-breyer-retires-from-the-supreme-court), Associate Justice of the United States Supreme Court, Justice Stephen Breyer announced his retirement from the court. Appointed by President Bill Clinton in the 1990s, Breyer has been the liberal pillar on the court for an iconic three decades that proved to be tumultuous for the highest court of the U.S. He was a beacon of liberalism in cases like the Nebraska abortion case and the unconstitutionality of the death penalty, leaving a glistening legacy behind him. Following his retirement, there is now a vacuum in the court to be filled. This might just be President Joe Biden's first golden opportunity to reshape the federal judiciary.

Breyer’s retirement allows President Biden to make good on his promise to appoint the first Black woman to the Supreme Court. Although his nomination has not yet been officially announced, insiders speculate that the two top contenders are federal Judge Ketanji Brown Jackson and California State Supreme Court Justice Leondra Kruger.

This avowal to appoint the first Black woman to the Court has generated uproar from the conservative right. The Republican criticism of President Biden’s decision to nominate the first Black woman to the Court is two-fold. Firstly, there is the classic argument about meritocracy. Turning a blind eye to structural issues that are embedded in American social life, we see repugnant arguments emanating from Senator Ted Cruz and TV host Tucker Carlson about “qualifications” for President Biden’s prospective Supreme Court nominee. The blowback to President Biden’s Supreme Court pledge has often relied on the false notion that Black people are less qualified, a staple of opposition to affirmative action. Interestingly, when Donald Trump vowed to nominate a woman to the court to replace Justice Ruth Bader Ginsburg, leading to the appointment of Amy Coney Barrett, Republicans were largely silent on the subject of meritocracy.

Another tangential issue to consider is that the Supreme Court nominations become abrasive because of the lifetime appointment policy of the Court. In order to maintain their party’s stronghold over the courts, Presidents across the aisle are incentivized to appoint young judges, conveniently disregarding the notion of supposed “merit”. The epitome of this problematization is again Amy Coney Barrett, who, despite not having honed the art of the law for the longest time, was promoted to the Supreme Court. In comparison, there were several candidates like Steven Colloton and Keith Blackwell, who were [far more experienced] (https://ballotpedia.org/Complete_list_of_Donald_Trump%27s_potential_nominees_to_the_U.S._Supreme_Court) but were discarded from the list. This is the very juncture where the “merit” argument starts collapsing. This is because even during this appointment, President Trump had some Ivy League graduates in his repertoire. Nevertheless, he chose Barrett. Why? Because she was a woman and appointing a woman was good politics. Presidents in history have repeatedly strategized Supreme Court nominations to cater to their particular political bases.

These practices are nothing new. Reagan pledged to nominate a woman to the highest court, thus nominating Sandra O’Connor as the first woman in the 200-year history of the United States to be on the Supreme Court. Similarly, although George H.W. Bush did not mention this explicitly, he replaced Thurgood Marshall with Black jurist Clarence Thomas. What these examples show is that throughout history, Presidents have considered identity as a crucial construct defining the direction they want the court to be headed in. Thus, identity as a construct has dictated political discourse in American society — and rightly so. Even though President Biden may have ulterior motives behind the nomination of a Black woman to the Supreme Court, demographic appointments have nevertheless become a long-standing norm in American politics. Moreover, in this circus of politics, the results we might hope to see from such a tangible uplifting of a section of society have instead been annuled by discrimination.

On a larger note, how will this nomination affect the Supreme Court? It’s easy to divide Supreme Court Justices along the lines of conservative and liberal and thus assume their positions on any given issue, but history has shown that the divide is not quite so simple. Despite their associations with their respective parties, it would be naive to assume that any Justice would simply make decisions along the policy lines of their party.

A test conducted to estimate the accuracy of predictions made on the rulings of the Supreme Court found that legal experts were correct only about 59% of the time in their forecastings. Even with the increasing polarity of American politics, the life tenure of the Justices’ position in the Supreme Court means that they do not feel the need to adhere as strictly to party lines as other members of their party do.

It is important to remember that, even in America’s politically charged climate, the Supreme Court is meant to act as an apolitical body. Although many Supreme Court Justices are known primarily for their politics, such as the late feminist icon Ruth Bader Ginsberg, their role as Justices requires them to evaluate cases based purely on the Constitution. That being said, there are still ways for ideology and politics to creep in. For example, their chosen method of interpreting the Constitution may lead to overall trends towards more conservative or liberal decisions. Still, the nature of the Supreme Court and its demands for those serving on it means that President Biden’s nomination may not mean as substantial a swing to the left as one might assume.