How the Future Supreme Court Nominee Could Impact the Case on Affirmative Action

The announcement of Justice Stephen Breyer's retirement means that a new Supreme Court justice will likely sit on the bench for a case being brought forth against Harvard University's and the University of North Carolina's use of Affirmative Action thought to occur in the spring or summer of 2023.

While several names have been tossed around, President Joe Biden's commitment to placing a Black woman on the court has led analysts and politicians to place J. Michelle Childs, Leondra Kruger and Ketanji Brown Jackson—who clerked for Breyer—as the likely front runners. Each woman holds positions on high-profile courts and also comes with their own sets of political considerations that could appeal to the Democratic Party.

Each justice certainly has different opinions and styles of leadership, but all three women would bring a new level of perspective to the court by becoming the first Black woman to hold a seat on the nation's highest legal body.

As it currently stands, the appointment of a new justice will not change the court's ideological standing. The Supreme Court will still have a 6-3 conservative majority, and it can be predicted that those justices will follow conservative calls to dismantle Affirmative Action.

However, Olatunde C. Johnson, a professor at Columbia Law School and expert in anti-discrimination law, says this new appointment could have a greater impact in swaying this decision than the court's current makeup may indicate, pointing to a previous ruling in the 2003 case on Affirmative Action, Grutter v. Bollinger.

Supreme Court Justices Pose For Formal Group
In this photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C. on April 23, 2021. Seated second from the right is Justice Stephen Breyer, who announced on January 27, 2022, this will be his last term with the court. Photo by Erin Schaff-Pool/Getty Images

"I remembered that (conservative) Justice Sandra Day O'Connor talked about the influence that hearing Justice Thurgood Marshall's stories had on her [opinion in Grutter v. Bollinger]," Johnson told Newsweek. "So, you don't really know the influence someone might have on the Supreme Court."

Affirmative Action was upheld in the Grutter v. Bollinger case after O'Connor, who was appointed by Ronald Reagan, broke from the other four conservative justices to vote with her legal colleagues in favor of protecting Affirmative Action. She wrote in a 1992 article for the Stanford Law Review that Marshall, who was the first Black justice on the Supreme Court, would "profoundly influence me," by "impart(ing) not only his legal acumen but also his life experiences."

Johnson said the appointment of the court's first Black woman justice and the unique experiences she would bring could sway some perspectives held by those on the court. However, in this case, Johnson is "hopeful" that this will not have to play a major role in the court's final decision.

"Part of the reason I believe it's unlikely to change the outcome is that I'm hopeful that the court won't tear through 40 years' worth of precedent," Johnson said.

Paul Schiff Berman, a professor at George Washington University Law School and an expert in interactions among legal systems, does not feel as confident that the court's decision will fall in line with the opinions offered by its predecessors.

He told Newsweek that it "seems likely" a majority of the justices will vote in favor of curtailing the ability for academic institutions to consider the factor of race when making their admissions decisions. Because the Supreme Court agreed to hear the case to begin with, and some have made rulings and comments against Affirmative Action, he says the court could overturn precedent.

When it comes to how a new justice may impact this decision, Berman agrees that the appointment of the first Black woman justice will bring newfound experiences to the court and offer opportunities to impart new understandings. Nevertheless, he does not think this factor will play as large a role as it did when Justice O'Connor sat on the bench.

"Justice O'Connor was a true moderate, pragmatist justice and was much more likely to be swayed by actual facts on the ground," Berman said. "The current group of conservative Supreme Court justices are much more radical ideologues in their pursuit of certain views of the law, and I think that they are much less likely to be swayed by anything than those in an earlier era."