Judge Ketanji Brown Jackson did what she needed to do this week. After sitting through hours of attacks on her character and legal judgment, Jackson is poised to be confirmed as the next associate justice of the Supreme Court. If so, she will become the first Black woman and the third Black justice to join those ranks.
It will also be the first time in American history that two Black justices serve at the same time. Clarence Thomas was sworn in more than 30 years ago following the retirement of Thurgood Marshall, the high court’s first Black appointee. Marshall had made a name for himself as the NAACP lawyer who successfully argued against segregation in Brown v. Board of Education. Thomas, his replacement, was the former head of the Equal Employment Opportunity Commission who opposed affirmative action, believing it to be nothing more than racial quotas, and has only swung further right since then.
It will also be the first time in American history that two Black justices serve at the same time.
The differences between the two men were as vast as those between Thomas and Jackson, a jurist whose empathy and willingness to center Americans in her reading of the law drew scorn from the Republican senators she faced. On issues from abortion to voting rights to the powers of the presidency, the two are certain to clash. But when they begin to serve together, there will finally be a roundness to the Black experience represented among the final arbiters of our Constitution.
In Supreme Court history, most of the 118 justices have been white Protestant men, reflecting the power structure at the country’s founding. As the court has slowly diversified, the idea that certain minority groups have a “seat” allotted to their demographic took root.
While Louis Brandeis was made the first Jewish associate justice in 1916, it was the seat Justice Benjamin Cardozo began to occupy in 1932 and became to be considered the court’s “Jewish seat” when his successor, Felix Frankfurter, was Jewish as well. Similarly, in 1898, Joseph McKenna, a Catholic, took the seat that would be occupied by a Catholic for almost a century. And former President Donald Trump nominated Amy Coney Barrett, at least in part so a woman would replace the late Ruth Bader Ginsburg.
When Marshall announced his retirement in 1991, he argued that the race of his replacement shouldn’t be used as an “excuse” for “doing wrong.” By that, “I mean, for picking the wrong Negro and saying, ‘I'm picking him because he's a Negro.' I'm opposed to that,” he told reporters. “There's no difference between a white snake and a black snake. They both bite.”
Still, there was a push that Marshall’s replacement be Black. In a 1990 op-ed in the St. Louis Post-Dispatch, Hal Riedl argued that the “perspective of a black justice is indispensable, and black Americans need to know that their experience will be represented in these discussions.”
As for Thomas, Riedl wrote, he “is less a conservative than a man who chose the Republican Party, less congested with black rivals, as his career path. Once free of the political constraints that have at once shaped and limited him and having taken possession of that unique combination of power and independence that adorns a member of the Supreme Court, Clarence Thomas may display some fire and bite.”
Instead, he’s become the most conservative justice, standing apart from even his conservative colleagues. Between joining the court and the 2020 term, he was the lone dissent in an 8-1 decision 30 times. And even when voting with the majority, he prefers to write his own concurring opinions, often taking his arguments much further than the other conservative justices.
But there wasn’t agreement then over whether he was the sort of snake that Marshall had warned against. Even the NAACP, Marshall’s former employer, was torn. “It presents an interesting dilemma because we did want to see an African American appointed to succeed Marshall,” then-NAACP leader Benjamin Hooks told CBS News of Thomas, “but we also wanted one who shared many of the views of Justice Marshall. And that presents a very painful dilemma for us at this point.”
A similar ambivalence ran throughout the Black community. A USA Today poll of Black Americans taken soon after Thomas’ nomination found that 54 percent of respondents were in favor of his appointment despite 52 percent saying, “Thomas does not represent views of most Blacks” and only 36 percent agreeing that he’d “do a good job ensuring equal rights for minorities.” Only 17 percent of Black people polled were opposed to Thomas’ nomination.
According to a recent Economist/YouGov poll, Thomas had an 18 percent approval rating among Black Americans. That’s not very high compared with the 45 percent favorable view of liberal Sonia Sotomayor that the Black respondents had — but it’s still higher than zero. His degree of conservatism may not represent the mainstream of Black America, and yet it would be a mistake to say that he speaks for none. But it’s been nearly a generation with his as the sole Black voice on the Supreme Court.
I asked Riedl Thursday about his 1990 op-ed expressing the hope that Thomas would shock Republicans. Thomas has been “a considerable disappointment to me,” Riedl, who said he attended Thomas’ first wedding, wrote in an email. “Thirty years ago, I never thought that a Black justice on the Court would become a rightwing ideologue. Please take note that it is perfectly possible for a black justice to be a principled conservative. But I do not place Thomas in this category.”
Jackson’s likely ascension — which Reidl supports — will correct the imbalance that has been muffling a sizable portion of the Black voice in the highest court in the land. It will also mean a potential end for the "Black seat” as we’ve seen with the Jewish seat and the Catholic seat — but as in each of those cases, the shift is due to more representation, not less. Since 2020, there are six Catholics on the court. And as Princeton’s Matthew Franck noted of the Catholic jurists over the years, their shared religion hasn’t meant shared opinions.
There are a wealth of voices and experiences that should be woven into our country’s legal foundations.
Justice Thomas is currently the oldest and longest-serving member of the court. On Friday he was released from the hospital a week after being admitted for “flu-like symptoms.” His wife, Republican activist Virginia "Ginni" Thomas, we now know had been texting with the White House chief of staff about overturning the results of the 2020 election. This new detail will only add to calls to impeach the justice over his longstanding conflict of interest.
These factors mean it’s not clear how long we will have these distinct Black voices writing from the bench. We don’t know if Thomas’ seat will eventually be filled by another Black jurist, or if the person who follows him will be a historic first. The “Black seat” may no longer exist as it once did — which is honestly for the best. Jackson and Thomas show that the complexity of Black America is too expansive to be contained to just one seat. And as Marshall, Jackson and Thomas would all agree, attempts to dilute our varied backgrounds and beliefs into a single dimension represented by one person isn’t progress — it’s tokenism.
There are a wealth of voices and experiences that should be woven into our country’s legal foundations. Jackson’s is one that has been sorely missing. She could one day find herself just one of many Black justices, each with their own view of the Constitution.
That said, she also may not be joined right away by another Black justice when Thomas finally steps down. I’d be OK with that — better a voice that harmonizes with Jackson’s than the hissing of a snake.