With Breyer’s exit, all SCOTUS progressives will be women | TheHill – The Hill

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 BidenJoe BidenCongress in jeopardy of missing shutdown deadline Senate to get Ukraine, Russia briefing on Thursday As Social Security field offices reopen, it's time to expand and revitalize them MOREs choice for Justice Stephen BreyerStephen BreyerSenators give glimpse into upcoming Supreme Court nomination battle White House rebukes GOP senator who said Biden's Supreme Court pick 'beneficiary' of affirmative action What does it mean to have a Supreme Court that 'looks like America'? MOREs replacement will likely be considering them. At that point, the courts 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 McConnellAddison (Mitch) Mitchell McConnellCongress in jeopardy of missing shutdown deadline Biden's 'New Political Order' Cotton says he will keep an 'open mind' on Biden's Supreme Court nominee, but doubts GOP will support them MORE (R-Ky.) denied President Barack ObamaBarack Hussein ObamaWhat does it mean to have a Supreme Court that 'looks like America'? Cotton says he will keep an 'open mind' on Biden's Supreme Court nominee, but doubts GOP will support them Can we sue our way to climate action? MORE his constitutional prerogative to fill a vacancy in 2016).

After Breyer leaves, all the progressives will be women: Justices Sonia SotomayorSonia SotomayorWhat does it mean to have a Supreme Court that 'looks like America'? How Breyer's replacement could reshape court's liberal wing Confirmation bias: The fighting has already begun, and Biden hasn't even named a nominee MORE, Elena KaganElena KaganWhat does it mean to have a Supreme Court that 'looks like America'? How Breyer's replacement could reshape court's liberal wing Supreme Court clears way for Alabama execution MORE and Bidens nominee. For the embattled conservative majority, a steady drumbeat of exclusively female dissents in politically charged cases will not look good.

To be sure, Bidens vow to choose a Black woman for the position has drawn criticism. Sen. Roger WickerRoger Frederick WickerSenators give glimpse into upcoming Supreme Court nomination battle White House rebukes GOP senator who said Biden's Supreme Court pick 'beneficiary' of affirmative action Graham: Nominating a Black woman to the Supreme Court wouldn't be affirmative action MORE (R-Miss.) cynically suggested that any such person would be a beneficiary of affirmative action. Sen. Susan CollinsSusan Margaret CollinsSenators give glimpse into upcoming Supreme Court nomination battle GOP governor pushes back on Trump suggestion of pardons for Jan. 6 rioters if elected Sunday shows - Biden Supreme court nominee, Russia sanctions dominate MORE (R-Maine) complained that Bidens approach adds to the further perception that the court will be a political institution like Congress, when it is not supposed to be. (Meanwhile, its Collins who in 2018 unnecessarily cast the critical vote to put Justice Brett KavanaughBrett Michael KavanaughWhat does it mean to have a Supreme Court that 'looks like America'? Cotton says he will keep an 'open mind' on Biden's Supreme Court nominee, but doubts GOP will support them Overturning Roe isn't only about red states or abortion MORE 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 courts 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 ThomasClarence ThomasWhat does it mean to have a Supreme Court that 'looks like America'? What do Republicans stand for? Cotton says he will keep an 'open mind' on Biden's Supreme Court nominee, but doubts GOP will support them MORE 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 Womens 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 womens 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.

Breyers vote wont 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 dont have the same headlining appeal, but their potential impact on the Supreme Courts 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 Commissions 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 agencys power while aggrandizing its own.

To be clear, theres 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. Whats unusual is that this conservative majority is poised to continue pushing legal boundaries that were settled like the Constitutions protection of abortion and affirmative action without having to get the buy-in of moderate justices. Because the conservatives dominance is now completely unchecked, theres 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 Breyers 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 Wehleis 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 WhyandHow to Think Like a Lawyer and Why (forthcoming February 2022). Follow her on Twitter:@kimwehle

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With Breyer's exit, all SCOTUS progressives will be women | TheHill - The Hill