How Stephen Breyer’s exit from the Supreme Court could hurt California and the West

·3 min read
ELISE AMENDOLA/Associated Press file

The U.S. Supreme Court, a body that once prided itself on chumminess even among ideological opposites, has been running noticeably short on bonhomie. The once-clubby justices have grown disputatious, pugnacious, occasionally obnoxious.

There’s a reason for this: They’re from the East Coast.

To be more precise, six of the nine are born-and-bred Easterners, with natives of New York and New Jersey alone just one justice shy of a majority. You can almost hear them rudely gesturing and shouting at each other over draft opinions as if merging onto a clogged Holland Tunnel approach: “Hey, I’m practicin’ strict constructionism ovah heah!”

Opinion

With the famously collegial San Franciscan Stephen Breyer planning to follow Sacramento’s own Anthony Kennedy, another renowned moderate, into retirement, only one true Westerner, Coloradan Neil Gorsuch, would remain. Just one other member of the court, Amy Coney Barrett, has origins west of the Mississippi River, and only barely: She’s from New Orleans.

Granted, the recent run of nakedly partisan court nominations and confirmations, along with the equally questionable jurisprudence that followed, has plenty to do with all the hard feelings. But a geographical monoculture rooted in the crabbiest part of the country can’t be helping.

Breyer’s reluctant abdication takes uncharacteristic stock of political reality, giving Biden and Senate Democrats time to replace him before the midterm elections and thereby preserve the court’s shrunken liberal minority. It’s a dire statement about the court coming from Breyer, a faithful adherent of the quaint notion that the justices should be fundamentally apolitical.

The temperamental and geographic void being left by the justice is one reason for President Joe Biden to lean toward a particular short-lister, California Supreme Court Justice Leondra Kruger, to succeed him — beyond, you know, her reportedly excellent qualifications. If Biden instead nominates the Florida-bred (and also eminently qualified) apparent front-runner, District of Columbia Circuit Judge Ketanji Brown Jackson, then California, which is home to one in eight Americans, wouldn’t even have one of nine Supreme Court justices. The entire West, moreover, could claim just one.

This would be in keeping with the court’s historical underrepresentation of California and the West. Much is rightly being made of the high court’s slowness to include women and minorities, but that’s only the beginning of its representational weaknesses. Californians number at most five of the nearly 90 justices who have served since the state’s admission to the Union — less than half as many as our population would indicate.

The number is even lower if limited to those who spent significant portions of their professional lives in California (four) or were born here (three). A 2010 analysis by University of Minnesota political scientist Eric Ostermeier found that 90% of the nation’s Supreme Court justices were drawn from east of the Mississippi, an imbalance that has persisted even in recent chapters of our history.

Is it crude to reduce the supposedly above-the-fray judicial branch to the apportionment politics practiced in legislatures? It’s no cruder than recent right-wing uses and abuses of judicial power — and no ruder than excluding half the country from a third of its government.

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