Opinion: Black history and a Black woman justice

By Elaine Gross

This year, during February’s Black History Month, President Joe Biden is preparing to nominate a Black Woman to serve on the U.S. Supreme Court, filling the seat held by retiring Justice Stephen Breyer. In the nation’s 246-year history, a Black woman has never served on the highest court.

The president’s announcement that a Black woman would fill the seat generated howls of protest from conservatives. Those howls were overtly racist, as Republican presidents have previously promised to appoint women to the Supreme Court — and appointed White women without controversy. Donald Trump pledged to nominate a woman after the death of Justice Ruth Bader Ginsburg in 2020; Ronald Reagan promised in 1980 to nominate the first woman to the court.

U.S. Senator Ted Cruz (R-Texas) called Biden’s announcement “an insult to Black women.” He continued, “Black women are, what, 6% of the U.S. population? He’s saying to 94% of Americans, ‘I don’t give a damn about you. You are ineligible.’”

U.S. Sen. Roger Wicker (R-Mississippi) said that, as a result of Biden’s pledge, the first Black woman on the Supreme Court would be a beneficiary of affirmative action.

It’s appropriate that we have this conversation during Black History Month, because it provides a time to reflect on great Black Americans and their often-heroic actions in the face of the structural racism that has defined and continues to permeate daily life in America. The current debate underscores the point: There has never been a Black woman on the U.S. Supreme Court in 246 years, and still a pledge to correct that situation is controversial among some in 2022.

The controversy comes from pledging to appoint a Black woman, because that violates the racial hierarchy of structural racism. Structural racism is the historical and ongoing racial discrimination, segregation and marginalization of Black people — African-Americans in particular — that is typically instigated or sanctioned by government. Underlying structural racism is the false notion that race provides a justification for treating people differently based on their race. But race is a social construct. All humans are 99.9% genetically identical. Racism is a concept used to advantage Whites and disadvantage Blacks.

If Biden’s nominee becomes the first Black woman to serve on the Supreme Court, we should celebrate that long overdue milestone and the extraordinary credentials that the nominee will inevitably have. But we should not fall victim to the idea that she is the exception — a rare talent who uniquely had the credentials to break the glass ceiling. The list of potential nominees being considered by the White House shows there are numerous Black women qualified to serve on the Supreme Court.

As we prepare to celebrate that milestone, we should also commit to three more actions:

First, we should increase the number of federal judges who are Black women. According to the Pew Research Center, “Only 70 of the 3,843 people who have ever served as federal judges in the United States — fewer than 2% — have been Black women.” The federal bench of judges serves as a pipeline for future Supreme Court justices. That under-representation of Blacks on the bench restricts the talent pool for future justices with attractive legal credentials. This is true for Black men as well.

Second, we should address the role that structural racism continues to play in the segregation of public schools and the insufficient funding of schools in neighborhoods educating most Black students. Concurrently, racial discrimination among real estate agents still exists, and zoning restrictions reinforce past discrimination. Both of these factors determine where students attend school and their access to advanced courses and enrichments. The result is that millions of Black girls — including those with the potential to serve on the Supreme Court — are deprived of their rightful opportunities to succeed, and our nation is deprived of the added wisdom they can bring from their life experiences to the role of Supreme Court justice.

Third, we should never forget the exciting and inspiring impact that having a Black woman on the Supreme Court can have on Black girls — and Black women of all ages. In America, we like to believe that anyone can grow up to do anything — but it’s easier to believe if you’ve seen it done.

As a civil rights leader for more than 20 years and a Black woman, I can attest to how exciting and inspiring it is to see Black women take on new historic roles: Michelle Obama as first lady, Kamala Harris as vice president, to name just two. The prospect of a Black woman on the Supreme Court is similarly invigorating — even after 246 years.

Elaine Gross is president of ERASE Racism, the New York-based civil rights organization.