A previous version of this article misspelled Justice Sonia Sotomayor's name and incorrectly said Judge Constance Baker Motley was nominated in September 1966. She was nominated in January 1966. The article has been corrected.
Now, with Justice Stephen G. Breyer’s pending retirement, Biden has an opportunity to make good on his promise about the next Supreme Court justice. Over the past century, Black women have earned their right to be represented on the court. They have proved themselves as able lawyers since 1872, as wise judicial magistrates and judges in state courts since 1939, in the federal court system since 1966 and as state Supreme Court justices and judges since 1975. Their absence on the Supreme Court is a stark reminder of the inequity of the legal system — especially given the historic contributions Black women have made to it.
When afforded the opportunity, Black women have proved themselves to be excellent jurists who improve the judicial system for the betterment of all.
Judge Jane Bolin became the first Black female judge in the country in 1939. Her path demonstrated how being a first means charting a new route. A graduate of Wellesley College, where Bolin entered as one of only two Black women in her class and, later, the first Black woman to graduate from Yale Law School, Bolin became a New York Family Court Judge at the young age of 31 in 1939. Gov. Fiorello LaGuardia appointed her, in part, in response to the continuing racial tensions and divisions in New York City. As a vocal and active member and leader of the NAACP, Bolin viewed her role as being a judicial pioneer. Along with other like-minded judges and government officials, she helped change racist laws and policies, including one that had assigned the files of children of color only to social workers of color. That race-based assignment system meant that children of color waited longer in the system for services than White children.
Despite her admirable 40 years on the bench and stellar record, her connections with former first lady Eleanor Roosevelt and other high-placed officials and her active role in the Black community including as a national officer in the NAACP, she was never promoted to higher courts. But her successful tenure was followed by the election or appointment of five other Black women as state court judges: Juanita Kidd Stout in Philadelphia in 1959; Vaino Spencer in Los Angeles in 1962; Marjorie Lawson in D.C. in 1962; Edith Spurlock Sampson in Chicago in 1962; and Myrtle B. Stryker in Cook County, Ill., in 1966.
In January 1966, President Lyndon B. Johnson nominated Judge Constance Baker Motley to the District Court of New York — making her the first Black woman appointed to a federal judgeship. Motley was a graduate of Columbia Law School and New York University. Though she was one of a handful of female trial attorneys, her nomination caused controversy. In recognition of her acumen as an appellate advocate, having argued and won 10 Supreme Court oral arguments, Johnson wanted to appoint her to the 2nd Circuit Appellate Court to fill the seat vacated by her mentor and former colleague, Thurgood Marshall, when he became the first Black man on the Supreme Court.
This intention was met by such hard-line opposition that Johnson relented and nominated her instead for a seat on the federal district court, where she presided over the important Southern District of New York, which includes Manhattan, the Bronx and six counties north of the city. Like Bolin, Motley viewed her judicial role as one that required mentoring, nurturing and training other lawyers, particularly those of color. She has been credited with positively assisting an entire generation of new federal court judges.
Yet, as she advanced in the federal court system, including to the role of chief judge of her court, she continued to be overlooked for vacancies on the prestigious appellate circuit courts, despite her outstanding experience as an appellate lawyer for the Legal Defense Fund of the NAACP.
Finally in 1979, Amalya Kearse ascended to the highest level ever attained by a Black woman on a federal court: the United States Circuit Court of Appeals. Unlike her predecessors, Kearse was a Wall Street lawyer. In 1962, she broke the racial barrier when she became the first “Negro lawyer for the New York Wall Street firm of Hughes, Hubbard, Blair and Reed.”
Kearse, a Wellesley College and University of Michigan Law School graduate, applied a more low-key approach to her judicial role, quietly building a reputation as a thoughtful, clear-eyed and intelligent jurist. A world-class bridge player, Kearse served as an active member of the 2nd Circuit Court of Appeals for more than four decades. Since Kearse’s appointment, there have been only 10 other Black women who have ascended to the federal courts of appeals. Three of them are recent Biden appointees. Biden has also nominated three more Black women over the past few weeks, and they await Senate confirmation.
Bolin, Motley and Kearse each brought new perspectives, broadened life experiences and community-based approaches to the art of judging. Like many pioneers, they sowed the seeds for success for future women and lawyers of color. Only seven Black women have served on a federal court of appeals, the primary feeder source for the Supreme Court. This disparity reflects a larger issue in the court system that has overwhelmingly created opportunities for White men at the expense of Black women.
Perhaps not coincidentally, the increasing number of Black women on state appellate courts has been accompanied by a narrowing of routes to the U.S. Supreme Court. When White men monopolized and dominated all the courts, there were many ways to reach the Supreme Court, including through elected office like Charles Evans Hughes, who was the governor of New York, and Hugo Black, who was a senator from Alabama. Others came through service on state courts, like the revered Oliver Wendell Holmes, William Brennan and Sandra Day O’Connor. Still others came through service in other branches of federal government, like Byron White and Lewis Powell or though nongovernmental offices like Abe Fortas, who was in private practice.
A Black woman on the Supreme Court would bring a needed expansion of worldview and experience because she would have to come from a source other than the U.S. Circuit Court of Appeals. It is highly unlikely that one of the current occupants of those seats — all of whom are nearly 70 years or older — would be selected, given the desire to maximize the lifetime appointment.
She would bring an intersectional identity that is currently absent on the court. Justice Sonia Sotomayor has been the standard-bearer for women of color. Yet she should not be the only one. How we analyze and resolve disputes is inextricably intertwined with our personal identities, particularly when those disputes fall into the gray areas — the ones that are most susceptible to interpretation and typically come to the Supreme Court for resolution.
People love to predict who is on Biden’s shortlist for the court vacancy. In fact, there are far too many Black women who would make tremendous appointees to do justice to such a limited list. The fact is, given the depth, breadth and experience of Black women lawyers, the court would be well served by any of them.