Another Working Mom May Join the Supreme Court

Much has been made in recent days of the racial and gender diversity that President Biden’s choice of Judge Ketanji Brown Jackson would add to Supreme Court. But there has been surprisingly little discussion of the fact that she would join Justice Amy Coney Barrett as the court’s second working mother.

Two years ago, when Justice Barrett was nominated, her status as a working mother was invoked by her Republican supporters as additional evidence of her fitness for the court. At her confirmation hearings, she was praised as “a walking example of how young children and demanding work can coexist.”

The logic was clear. Despite her staunch conservatism and the unseemly speed with which she was nominated and confirmed, her ability to successfully combine work and family made her a worthy successor to the feminist icon Ruth Bader Ginsburg, whose death in September of 2020 created the vacancy she was confirmed to fill. Judge Barrett’s “supermom” narrative was cemented in the public discourse, eclipsing the circumstances of her nomination, when Senator John Kennedy, Republican of Louisiana, winkingly asked “who does the laundry” for the sprawling Barrett brood.

Will Judge Jackson’s status as a working mother be similarly deployed as the confirmation process takes shape? While Democrats have touted her sterling qualifications and the historic nature of her nomination as the first Black woman to the court, few have leaned into her identity as a mother, as the Republicans did with Justice Barrett.

Perhaps the difference is a question of scale. Justice Barrett’s “sizable American family,” as former Vice President Mike Pence put it, of seven children made her status as a working mother especially notable. (Judge Jackson has two daughters, ages 21 and 17.) Or perhaps it is a question of party politics. Democrats may be less inclined to flag a nominee’s family status as evidence of professional accomplishment or acumen.

Or maybe it is that there is nothing especially novel or unexpected about the fact of a Black working mother — even one as accomplished as Judge Jackson. After all, for over two centuries, Black women in America have combined motherhood with work outside of the home. Among mothers, Black women have the highest rate of labor force participation, according to the Labor Department.

Indeed, the notion of Black working mothers is so fixed that departures from this norm may seem unorthodox — even heretical. Remember the media firestorm that Michelle Obama ignited in 2008 when she announced that she would be relinquishing paid employment to assume full-time duties as the first lady and “mom in chief”?

It’s still early in the process, of course. A confirmation hearing is still two weeks away, set to begin March 21, though Judge Jackson has begun visiting members of the Senate Judiciary Committee. Perhaps Democrats are still plotting their strategy.

Whatever the reason, discussion of Judge Jackson’s bona fides as a working mother have been notably absent among Democrats, who have instead been focusing on the consequential nature of her nomination. But critically, those qualities have also made her a target of the right. Already, Republican leaders have sniped about Mr. Biden’s pledge to nominate a Black woman, ignoring — or, in the case of Tucker Carlson — challenging her superlative credentials and record of public service. It will surely get worse as the confirmation process begins in earnest.

Emphasizing Judge Jackson’s status as a working mother could enhance her already compelling story as the confirmation battle heats up. It certainly worked for Justice Barrett. In addition to using Justice Barrett’s motherhood to burnish her credentials and frame her nomination as pathbreaking — she was touted by President Donald Trump as “the first mother of school-aged children ever to serve on the U.S. Supreme Court” — Republicans also invoked her status as a mom as cover from attacks on her judicial philosophy and a confirmation process hastily conducted in the midst of a presidential election. Senator Chuck Grassley, Republican of Iowa, breezily dismissed claims that Judge Barrett would vote to dismantle the Affordable Care Act by noting that as “a mother of seven, Judge Barrett clearly understands the importance of health care.”

If the confirmation process is an opportunity to assess a prospective justice’s judicial philosophy and approach to the law, it is also a crucible for forging narratives about the nominee herself — narratives that may insulate the nominee from attacks in the moment and beyond. In response to a barrage of questions about his judicial philosophy, Chief Justice John Roberts famously cast himself as a kind of judicial umpire, neutrally calling balls and strikes. To this day, he is credited as an institutionally minded jurist who, despite his conservatism, is frequently at odds with the more ideological members of the court’s conservative bloc. Likewise, Justice Neil Gorsuch, who was nominated in the wake of the failed Merrick Garland nomination, was peppered with questions about his fidelity to the Trump administration. He cannily seized the opportunity to signal judicial independence and to distance himself from the president who nominated him.

In this regard, leaning into Judge Jackson’s status as a working mother could serve several ends, further burnishing her impressive credentials and varied professional experiences, while rebutting charges that diversity is the only reason for her nomination.

And critically, Judge Jackson could provide a compelling account of working motherhood. In a 2017 speech at the University of Georgia, she lamented the difficulties of reconciling her career with “the needs of children and family responsibilities.” For many years, she was, as she put it, “something of a professional vagabond, moving from place to place as family needs and circumstances changed.” While she may have made it to the top of her profession, the path was not always easy, and her dazzling outcome not always assured.

Her ascent to the pinnacle of the legal profession is not just a testament to her brilliance and professional acumen. It also speaks to her grit, resilience and drive to succeed — admirable, relatable qualities that could overshadow the expected charges of identity politics.

As Democrats prepare for Judge Jackson’s confirmation, perhaps it is worth exploring the motherhood card. After all, recasting the nominee as both a legal “superstar” and an accomplished “supermom” has worked well before.

Melissa Murray is a professor of law at New York University.

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