How Will Obama Shape the Supreme Court?


(The Root) — Between now and the inauguration on Jan. 21, The Root will be taking a daily look at the president's record on a number of policy issues, including his first-term accomplishments and what many Americans hope to see him accomplish in a second term. Today: the Supreme Court. See previous postings in this series here.

Background: The current makeup of the U.S. Supreme Court is four justices perceived as conservative (John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito), three perceived as liberal (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan) and one perceived swing vote in Anthony Kennedy. As a senator, Obama previously voted against the nominations of Samuel Alito and current Chief Justice John Roberts. Additionally the president has expressed admiration for late Justice Earl Warren, best known for serving as the high court's chief justice during landmark rulings that advanced civil rights, including Brown v. Board of Education in 1954. 


To get a more in-depth idea of his thinking, note that in 2008 as a candidate for president, then-Senator Obama said, "We have to have people with the intellectual qualification and academic credentials to perform, but that can't be the only criteria. We have generally lately drawn only from the academic areas, and some of our best justices have been people who know a little how the world works. Know what it looks like out[side] of a court, because especially when you get to the highest levels … 95 percent of the cases that come before the Supreme Court or the appellate court are actually pretty easy to resolve. A lot of these cases are cases where there is clear language that tells you what the law is, or clear precedent that tells you what the law is, and Scalia and Ginsburg agree, and those cases typically get washed out.

"The cases that we pay attention to or care about are the 5 percent of cases or 1 percent, and what makes them hard cases is because there are conflicting values. It's not just that there is right and wrong. There might be two rights or two wrongs, and you've got to try to resolve them. And then the question is, what's in the person's heart and gut, not just in their head. What I want is people on the bench who have enough feeling — enough empathy — for what ordinary people are going through, that they're not just in a bunch of abstractions up there, but they are focused on, What does this really mean?"

First-term accomplishments: In 2009 President Obama made history by nominating the first Hispanic American to be confirmed for the U.S. Supreme Court: Sonia Sotomayor, previously of the U.S. Court of Appeals, 2nd Circuit. His subsequent nominee was also female: Elena Kagan, who prior to her confirmation to join the nation's high court served as the administration's solicitor general.

Second-term hopes: It is not a secret that many African Americans, who comprised the president's most stalwart support during the 2008 election, are hoping he may appoint a black person to the court, which has only had two black justices in its history. The president recently nominated Ketanji Brown Jackson to the D.C. federal court, the first black woman to receive such an appointment in three decades. The president could make history by appointing other underrepresented groups to the court this term, including an Asian justice or an openly gay justice. (He has nominated seven openly gay federal justices to date.)

It is possible he could appoint a justice who has more than one of these characteristics. He nominated openly lesbian U.S. Attorney Pamela Ki Mai Chen to a District Court judgeship, and in one of his first actions after being re-elected, the president nominated Judge William Thomas to the federal bench. Thomas becomes the first openly gay, black, male lifetime-tenured federal justice. At the time, the president said the nomination of Thomas and others "represent my continued commitment to ensure that the judiciary resembles the nation it serves." Many are optimistic he will continue to demonstrate this commitment in his second term. 

Tell us what you would like to see President Obama do concerning the Supreme Court during his second term, using the comment box below.


Keli Goff is The Root’s special correspondent. Follow her on Twitter