Biden’s Supreme Court Promise: Will We See a Black Woman on the Bench?

In February 2020, President Joe Biden promised to nominate a Black woman to the Supreme Court. Now, a retirement announcement by Justice Stephen G. Breyer gives Biden a unique opportunity to both make history and directly combat the court’s lack of diversity.

Black women are historically underrepresented in politics. According to the Federal Judicial Center’s biographical database, throughout the federal judiciary’s entire 232-year history, less than 2% of individuals who have served as federal judges have been Black women. Constance Baker Motley, the country’s first Black woman to serve on the bench, was installed in 1966 — a shockingly recent year. 

Although the representation of Black women in the federal judiciary has seemingly ‘improved’, it is still incredibly disproportionate. 2020 Census data shows that Black women make up about 7.4% of the U.S. population, but only 4% of sitting federal judges are women who identify as multiracial or Black. In direct contrast, 78.5% of the federal bench is made up of individuals identifying solely as white; a significant overrepresentation considering their population nears around 61%. These disparities in representation minimize the effectiveness of our court systems, as there is a lack of diversity in experience, perspective and jurisprudence.

Diversity in politics is necessary and is of paramount importance specifically in the Supreme Court. SCOTUS adjudicates on the most contentious issues: religion, reproductive rights, gun control, public health, etc. Furthermore, the scope of SCOTUS covers questions of race. The Supreme Court has historically decided on issues of racial inequality and been instrumental in the fight for equal rights, and it will undoubtedly continue to be. For example, the court has recently agreed to hear cases challenging race-conscious affirmative action college programs aimed at maintaining racial diversity. 

It is vital that the highest court accurately reflects the diversity of the individuals impacted by their decisions. Given that life experiences shape judicial philosophy, the Supreme Court frankly needs a Black woman: someone who cannot only understand but relate to – on the deepest level – the intersection of gender-based and racially fueled discrimination in America. For instance, when the Supreme Court heard arguments regarding Mississippi’s abortion ban, not a single Black woman’s voice was heard. This was a major injustice, considering Black women arguably have the most at stake. Black women are among the racial demographic that is most in need of abortion care and are the most impacted in terms of socioeconomic status and safety when denied an abortion. Given this, it is clear that having a Black woman on the bench is not just a matter of breaking tradition; it is a matter of ensuring that the people who will be impacted, will also be heard. 

Statistically, it is likely that Biden will make a valiant effort to get a Black woman on the bench. He has already appointed more Black women to the federal branch than any GOP president. Additionally, he distinguishes himself from his Democrat predecessors in regard to the percentage of Black female judges he has appointed. As of February 1st, 2022, Black women have accounted for 24% of Biden’s appointed judges, surpassing Obama and Clinton who stood at 8% and 4%, respectively. 

If President Biden can deliver on his promise, his nominee would be the first Black woman ever to serve on the nation’s most powerful and prestigious court; and one of the small number to serve as a federal judge. From a total of 115 SCOTUS judges, only five have been women, two have been Black men (Justices Thurgood Marshall and Clarence Thomas), and one has been a woman of color (Justice Sonia Sotomayor, who is Latina). Black women are not even underrepresented on the Supreme Court, they are not, and never have been, represented. Biden, who has garnered massive support from Black women, has an opportunity (and truthfully, a responsibility) to fix this and amplify a voice that is frequently and unjustly disregarded.