Analysis-Biden's next Supreme Court nominee not likely to change its
rightward push
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[January 27, 2022]
By Lawrence Hurley, Andrew Chung and Jason Lange
WASHINGTON (Reuters) - President Joe Biden
can make history by appointing the first Black woman to the U.S. Supreme
Court to succeed the retiring Justice Stephen Breyer, but replacing one
liberal with another won't change the aggressively conservative court's
trajectory.
The court has a 6-3 conservative majority bolstered by three
appointments made by former Republican President Donald Trump. The new
majority has recently flexed its muscles by taking up major cases that
could curb abortion rights, expand gun rights and bring an end to the
consideration of race in university admissions.
For Democrats, Breyer's retirement provides a boost and a distraction
from Biden's slide in popularity over the last five months during surges
in COVID-19 cases and deaths and Americans' frustration with the
pandemic's economic toll. Opposition by two conservative Democratic
senators also stalled a spending proposal that Democrats hoped would
energize voters ahead of the Nov. 8 congressional elections.
Now the focus can be on the Biden White House's goal of diversifying the
courts and appointing liberal judges to counteract Trump's appointments.
Biden's chance to pick a Supreme Court justice gives the White House an
opportunity to tell a positive story, said Kyle Kondik, a political
analyst at the University of Virginia's Center for Politics.
![](http://archives.lincolndailynews.com/2022/Jan/27/images/ads/current/fricke_sda_LUAL_2021.png)
"It's better than what the White House has had to deal with lately,"
Kondik said.
Black women judges such as Washington, D.C.-based federal appeals court
judge Ketanji Brown Jackson and California Supreme Court Justice Leondra
Kruger are among those likely to be in contention.
TICKING CLOCK
There is a narrow window to replace the 83-year-old Breyer. In
November's elections, Republicans could regain control of the Senate.
The chamber is tied 50-50, with Democrats holding majority thanks to
Vice President Kamala Harris' deciding vote.
The situation is different at the Supreme Court building across the
street from the Capitol, where a new liberal justice can refresh the
liberal wing but is likely powerless to stop the trend of conservative
rulings.
On major, politically-divisive issues, "Justice Breyer has been a pretty
reliable vote for how you’d expect a Democratic-appointed justice to
vote on those issues, and we could expect someone Biden nominates would
vote the same way," said Kelsi Brown Corkran, a Supreme Court litigator
at Georgetown University Law Center. Biden’s appointment will mean
"probably very little" for the court in terms of its overall outcomes
and direction," she added.
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![](../images/012722pics/news_a1.jpg)
California Supreme Court Justice Leondra Kruger is seen in an
undated photo, U.S. Supreme Court of California/via REUTERS THIS
IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY./File Photo
![](http://archives.lincolndailynews.com/2022/Jan/27/images/ads/current/graue_21CAMARO_100421.png) The abortion and guns cases before
the court will be decided before Breyer is expected to step down at
the end of the current term, which is usually the end of June. The
court's conservatives seem willing, in a case from Mississippi, to
undermine or even overturn the landmark 1973 Roe v. Wade ruling that
legalized abortion nationwide and, in a case from New York, expand
the right to carry firearms in public, based on oral arguments late
last year.
The new justice, if confirmed by the Senate, would likely be on the
bench for the start of the court's next term in October, when it
will be preparing to hear the university admissions case. As with
the abortion and gun cases, if the conservative justices all vote in
lockstep, the liberal justices have no leverage.
"The members of the six-justice conservative majority know what they
think. A new voice on the other side is unlikely to make them
rethink their views," said Carolyn Shapiro, a professor at
Chicago-Kent College of Law, who served as a law clerk under Breyer.
CAFETERIA COMMITTEE DUTY
Although insiders often say that a single change on a nine-justice
court changes the court as a whole, junior justices generally have
to wait before having a major impact.
Traditionally, initial tasks included serving on the court cafeteria
committee and answering the door if someone seeks to enter the
justices' private conference, where they talk about how they plan to
vote in cases and which new cases to take up. The junior justice
also speaks last at those meetings.
The new appointee could make waves outside the court, where the
first Black woman justice would be a role model for future
generations and part of an all-woman liberal minority on the bench
along with Justice Elena Kagan and Justice Sonia Sotomayor. The
court, with conservative Justice Amy Coney Barrett, would have four
women justices serving together for the first time.
![](http://archives.lincolndailynews.com/2022/Jan/27/images/ads/current/charrons_bch_2022.png)
Chicago-Kent's Shapiro said justices in the minority can also make a
broader case to the public that can over a longer period help shape
the law, as conservative Justice Clarence Thomas and the late
liberal Justice Ruth Bader Ginsburg have done at times.
"They can have tremendous influence that way," Shapiro said.
(Reporting by Lawrence Hurley, Andrew Chung and Jason Lange; Editing
by Scott Malone and Grant McCool)
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