Replacing Stephen Breyer: who is Biden thinking of? | Opinion


Today, more than ever, the announcement of the retirement of a Supreme Court judge is a shock wave. Although the court is the most apolitical branch of government, the process of appointing a new judge may be where the court’s politics are most evident.

Justice Stephen Breyer’s retirement announcement is no different. Even before the Supreme Court made the announcement official, a White House leak sparked a media frenzy: who would President Joe Biden appoint to replace Breyer? While the answer will impact the court’s decisions on a number of issues, the one that has increasingly become a feature of the court’s role is religious freedom.

In an effort to make the Supreme Court more representative of the American population, Biden has pledged to appoint a black woman to the Supreme Court. While the White House has released no official list of nominees, several names have circulated in the media as being on the shortlist.

Although Republican-appointed tribunal members are frequently portrayed as pro-religious freedom in the media, Breyer also frequently voted in favor of religious freedom during his tenure. In 9 of 13 religious liberty cases since 2006, Breyer has joined the majority in ruling in favor of religious rights. A study ranked him in the top half of the most pro-religious judges to serve on the court since 1953.

Biden’s nominee will be subject to in-depth analysis by the Senate Judiciary Committee. It’s a virtual guarantee that the subject of religious freedom will be addressed, as was the case for Justices Brett Kavanaugh and Amy Coney Barrett. But it can be difficult to determine a judge’s opinion on political issues. During public hearings, you will have a hard time finding a Supreme Court nominee to take a personal position on a given topic. And rightly so, because judges are expected to apply the law as they find it, regardless of their personal opinions.

Supreme Court watchers should therefore delve into a judge’s previous rulings, articles, and speeches for guidance on how the judge might decide any issue. Sometimes judges’ past writings are full of clues as to how they might decide a future case. But often analysts have to speculate. With that in mind, let’s take a look at three names among those rumored to be under Biden’s consideration for the nation’s highest court: J. Michelle Childs, Ketanji Brown Jackson and Leondra Kruger.

J. Michelle Childs

Childs is currently a federal trial court judge in South Carolina. Before being announced as a Supreme Court nominee, Childs was nominated by Biden for a seat on the United States Court of Appeals for the District of Columbia, a nomination that was put on hold while her court bid supreme is pending. Childs is a member of the Catholic faith, the predominant faith of sitting judges.

A search of the opinions of children’s courts shows that she had several opportunities to examine issues of religious freedom. Of these, she seems to have dealt primarily with claims of religious freedom presented by prisoners. Two of those cases she dismissed for the prisoner’s procedural failings and two were dismissed because the prisoners failed to demonstrate that their religious exercise was burdened. But in one case, where she served as a judge of appeals by special designation on the United States Court of Appeals for the 4th Circuit, she joined in an opinion that a prison had increased the religious exercise by a prisoner without justification when he was denied a diet consistent with the teachings of the Nation of Islam.

Childs has also resolved cases of religious land use and religious speech on procedural grounds. Perhaps most notably, Childs wrote a decision in which she thoroughly considered and applied the First Amendment’s ministerial exception, finding that a religious university was protected from suit by an employee whom Childs found to be a “minister “. While these rulings say little about Child’s personal thoughts on religious freedom, they do demonstrate his adherence to religious freedom law. Its decisions set out the appropriate jurisprudence, laws, and criteria for religious freedom. The same would be expected if she was chosen to fill Breyer’s vacancy.

Ketanji Brown Jackson

Jackson is currently a federal appellate judge for the United States Court of Appeals for the District of Columbia. Prior to this position, she was a federal trial court judge in DC Jackson has been associated with both Baptist and Jewish groups, although they do not necessarily indicate her religious preference.

Jackson’s court history does not reveal as many religion-related views as it does for Childs. However, two decisions stand out. In one, Jackson found that a Christian worker’s complaint of religious discrimination sufficiently alleged that his working conditions had been changed because he played gospel music in the workplace. In another, Jackson joined a board of judges that determined an appeals court judge did not commit misconduct when she spoke about biblical justifications for the death penalty. The appeals judge had clarified her ability to set aside her religious views when acting as a judge.

But what Jackson’s court record lacks in religious freedom cases, his public comments make up for. During Jackson’s confirmation hearings for her seat on the United States Court of Appeals for the DC Circuit, she was asked about her former membership on the board of trustees of a school run by a Baptist organization with opinions. conservatives on sexuality and abortion. In response, although she did not commit to the school’s statement of faith, she said that as a judge, she believes in protecting religious freedom more broadly. Jackson called religious liberty a “fundamental principle of our entire government.” If she takes Breyer’s position on the Supreme Court, we’ll see how that view plays out in hotly contested cases, especially when religious liberty clashes with other important civil liberties.

Leondra Kruger

Kruger is currently a Justice of the Supreme Court of California. Prior to his appointment to this court, Kruger was a successful appellate attorney, having argued 12 cases before the United States Supreme Court. Kruger has Jewish heritage, as his father was the son of Jewish immigrants. After Catholicism, the Jewish faith is the most present among the members of the Supreme Court, including that of Breyer.

Of the three candidates examined here, Kruger’s judicial decision-making says the least about how she would adjudicate a religious freedom case before the Supreme Court. Although she has joined and authored numerous opinions regarding religious jurors with qualms about the application of the death penalty, as well as the religious composition of juries, the religious freedom issues most likely to come before the Supreme Court do not appear in its decisions.

Yet Kruger has had a highly publicized commitment to religious freedom. She argued in the United States Supreme Court against the application of the First Amendment Ministerial Exception. The Supreme Court, in a rare move, unanimously rejected the position taken by Kruger on behalf of the Equal Employment Opportunity Commission, recognizing the ministerial exception applied in this case (the same case which Childs later applied, as noted above). Although it would be hasty to assume that Kruger would adopt the EEOC’s position in this case as its own, it could indicate that it would be less sympathetic to religious claims than others.

Whoever Biden chooses to appoint to the Supreme Court will be an enduring feature of the court for decades. For this reason, it is reasonable to expect a contentious nomination process, in which religious freedom will feature.

Tanner Bean is an attorney with the law firm Fabian VanCott and is licensed to practice in Utah and Idaho. Her practice focuses on employment law, litigation, appeals, and the intersecting areas of religious freedom and LGBT+ discrimination. The opinions expressed are his own.

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