Being the first: What it’s like to make Supreme Court history

Sandra Day O’Connor was nervous when she joined the Supreme Court in 1981 as the nation’s first female justice.

“It’s all right to be the first to do something, but I didn’t want to be the last woman on the Supreme Court,” O’Connor said in 2012. “If I took the job and did a lousy job it would take a long time to get another one, so it made me very nervous about it.”

Now, President Joe Biden is preparing to put another woman in the role of a historic first on the court. The person he wants to be first Black female justice will become an instant celebrity — and face a unique set of pressures.

Just being the new justice on the nine-member court can be an adjustment. Justice Amy Coney Barrett recently described learning the job as “like learning to ride a bike with everybody watching you.” The court’s newest justice — the fifth woman in the court’s history — said in an appearance this month that “being a public figure is a lot to get used to.”

That will only be magnified for Biden’s nominee, who will immediately join the ranks of court firsts.

They include Roger B. Taney, the court’s first Catholic, in 1836. Louis Brandeis was the court’s first Jewish member, in 1916. Thurgood Marshall was the court’s first Black justice, in 1967. Justice Sonia Sotomayor became its first Latina justice in 2009.

Sotomayor acknowledged in a 2018 public appearance that she felt the weight of being the only woman of color on the court, calling it a “really big burden” and “a great responsibility.”

“I think there are, for women in general, the need for role models,” she said, citing O’Connor and Ruth Bader Ginsburg, the court’s second female justice, as having inspired her. “But for women of color, people in top positions are not as frequent and certainly not as numerous.”

Women, and in particular Black women, often feel pressure to be the most qualified in the room to overcome the outsize criticism and questions surrounding their fitness they can attract.

“They have to be so perfect as to shield themselves from the criticism,” said Maya Sen, a political scientist at Harvard’s John F. Kennedy School of Government who studies the issues of gender and race and the law.

Sotomayor almost decided not to go through with her own nomination to the court. Deeply hurt by articles after her nomination that suggested she was not smart enough and not very nice in the courtroom, she thought about pulling out of the process. It was at that point, however, that a friend with an 8-year-old daughter told her: “This is not about you, dummy. … This is about my daughter, who needs to see somebody like herself be in a position of power.” Sotomayor stayed in.

Already, Democrats have built up expectations around the yet-to-be-named nominee.

Biden has said he will nominate “someone with extraordinary qualifications, character, experience and integrity.” White House press secretary Jen Psaki says she will have “impeccable experience.” Connecticut Sen. Richard Blumenthal, among the Democrats who met with Biden about the nomination earlier this month, said he expected the nominee will “really help unite the country.”

Some Republicans, including former Vice President Mike Pence, have criticized Biden’s pledge to name a Black woman to the court. Texas Sen. Ted Cruz called it “offensive,” though he pledged on “Fox News Sunday” to “consider that nominee on the record” and said the Senate would focus on “substance and what kind of justice she would make.”

Senate Democrats expect to be able to confirm Biden’s nominee on their own, but they and the the president would like to see bipartisan support. The three top contenders for the job are Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit; Leondra Kruger, a member of the California Supreme Court; and J. Michelle Childs, a federal judge in South Carolina. Biden has said he will announce his selection by the end of the month.

Marshall was already a legendary civil rights figure that by the time he joined the court, which was just the latest in a series of historic accomplishments. Mark Tushnet, a former Marshall clerk who compiled a book of Marshall’s speeches and writings, said he cannot recall the justice ever expressly talking about being the first Black person on the court.

Marshall has schools and courthouse buildings named after him. In Sotomayor’s case, a public housing development she lived in growing up was renamed in her honor. Marshall and Brandeis are among the justices the U.S. Postal Service has honored with stamps.

As for mail generally, Biden’s future justice can expect to get a lot — not only congratulations but also speaking requests. Sotomayor got bins and bins of mail. O’Connor got truckloads. The vast majority of writers were supportive, but a few men angry at O’Connor’s appointment sent naked pictures of themselves, author Evan Thomas wrote in his biography of her, “First.”

O’Connor largely shrugged off the crude protest. One of her sons, Jay O’Connor, said his mother’s answer to any doubters was to throw herself into her work and ensure she was incredibly prepared.

Jay O’Connor said even decades after she was nominated, women in particular would come up to his mother in public and tell her they remembered where they were when they heard the news that President Ronald Reagan had picked her. They wanted her to know, he said, how deeply meaningful that announcement was to them.