Nominate and Confirm a Supreme Court Justice

When Associate Justice Stephen Breyer announced his retirement from the Supreme Court, President Joe Biden nominated Judge Kentanji Brown Jackson, the first Black female, to fill the pending vacancy. The Senate hearings, Court history of all White men until the confirmation of Thurgood Marshall and all male until the confirmation of Sandra Day O’Connor, Court influence on society and recusal option provide lessons, resources and activities.

Although the Supreme Court has been part of America’s democracy since Article III of the Constitution established the federal judiciary, most students know little of its function and identity of its justices. Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."


Although the Constitution defined the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also established the lower federal court system. Today, there is one Chief Justice and eight Associate Justices of the United States Supreme Court. Like all federal judges, justices are appointed by the President and are confirmed by the Senate. 


Since the court was formed in 1790, there have been only 17 chief justices and 103 associate justices. Since five chief justices had previously served as associate justices, there have been 115 justices in all. When Judge Kentanji Brown Jackson was confirmed on April 7, 2022, she was the first public defender to sit on the high court, the first justice since Thurgood Marshall with criminal defense experience on a bench long dominated by former prosecutors, the sixth female justice and the first Black woman on the Court.


Confirmation hearings in 1955 for John Marshall Harlan II established the regular practice of nominees testifying in person at their hearings. According to the Constitution Center, Congressional leaders were “concerned about a runaway liberal court,” Court scholars have written about the televising of confirmation hearings, that began in 1981 with the hearings of Sandra Day O’Connor, increased the politicization of the process.


As the Senate decided on Judge Jackson’s confirmation, The Washington Post reported on 29 emails sent by the wife of Associate Justice Clarence Thomas to Trump White House Chief of Staff Mark Meadows. Virginia Thomas’s activism reopened questions of when a member of the Supreme Court should recuse from hearing a case and what was the public role of a spouse.


As this curriculum guide was being completed the U.S. Senate voted 53-47 (with Republican Senators Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah voting with the Democrats and two Independents to confirm Kentanji Brown Jackson as the 116th Supreme Court justice — completing the nomination and confirmation process one more time.


The composite photograph, above, includes representative members of the Supreme Court. Seated, from left: Justice Horace Gray (photographed in 1886), Justice John Marshall Harlan (in 1899), Chief Justice William Howard Taft (in 1923), Justice Tom C. Clark (in 1965) and Justice Ruth Bader Ginsburg (in 2010); standing, from left: Justice William B. Woods (in 1886), Justice George Shiras (in 1899), Justice Thurgood Marshall (in 1970) and Justice Sandra Day O’Connor (in 1981).



April 7, 2022

The Supreme Court and Students
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Complete a Word Find
English, Social Studies, U.S. Government

Use Judicious Findings, a word find, to introduce students to the terms related to the work of the Supreme Court and other courts. Teachers also introduce students to four of the “firsts” of the Supreme Court: Sandra Day O’Connor, the first female justice; John Jay, the first Chief Justice; Thurgood Marshall, the first black justice; and William Howard Taft, the first and only president to become a Chief Justice (tenth).


Teachers might expand this activity by asking students to use five or more of the terms in a short statement about the Court.


Follow the Steps to Confirmation
Social Studies, U.S. Government, U.S. History

The Washington Post informational graphic is an easy-to-follow step-by-step explanation of the process from nomination to confirmation. Read and discuss “How a Supreme Court nominee becomes a justice.”


Teachers may also have students listen to “The Confirmation Hearings of Judge Ketanji Brown Jackson,” a National Constitution Center March 24, 2022, podcast.


Search for the Best Nominee
Character Education, U.S. Government, U.S. History

Teachers might begin this activity by explaining the structure and role of the Supreme Court. Then ask students what personal characteristics should a nominee have to be the next Associate Justice of the Supreme Court? What education and judicial experience would be ideal? How important is it for a nominee to bring diversity to the Court?


Students may be given “Justice Stephen Breyer to retire from Supreme Court” to read and discuss. Justices are appointed for life, but some choose to retire. Get acquainted with Breyer and the vacancy to be filled.


Explain the campaign promise made by Joe Biden. Give students “A guide to the Black female judges who are contenders to replace Justice Breyer.” Based on these brief descriptions, which of these potential nominees meet their criteria for character, career experience and temperament? 


Meet Biden’s Pick For JusticeMeet Biden’s Pick For Justice
Character Education, English, Journalism, U.S. Government, U.S. History

To inform readers when President Biden announced his choice to fill the vacancy when Justice Stephen Breyer’s term officially ended, The Post covered the fulfillment of his constitutional duty. Read and discuss “Biden makes historic pick for top court: Nominating first Black woman fulfills pledge, sets up Senate clash.”


For a more in-depth introduction to the nominee, read “How Ketanji Brown Jackson found a path between confrontation and compromise: Supreme Court nominee was a child of the ‘70s’ who overcame obstacles by finding middle ground” by Marc Fisher, Ann E. Marimow and Lori Rozsa. Discuss her high school and college days as she and classmates remember her.


The Supreme Court has some online resources for educators. You may wish to review “The Challenge of Selecting an Ideal Supreme Court Nominee.” It includes handouts and resources to “research the characteristics of current justices, list and explain factors that influence nomination selection.”


What About the Hearings?
Journalism, Social Studies, U.S. History, U.S. Government

“Unfortunately civility is hard to codify or legislate, but you know it when you see it. It’s possible to disagree without being disagreeable.”— Sandra Day O' Connor.


Following her nomination, Judge Jackson was vetted then appeared before the Senate Judiciary Committee, composed of an equal number of Republicans and Democrats. It was characterized by many for its biting questioning, grandstanding by potential presidential candidates as well as its thoughtful questions and supportive attitudes.


It was covered live and by news organizations around the world, mixed with news of the horrendous events taking place in Ukraine. Both the news and opinion teams of The Washington Post covered the hearings in print and online. Teachers may ask students to read articles reproduced in the two resource guides as well as these additional ones:


In News Coverage

* “Ketanji Brown Jackson pledges independence and neutrality in Supreme Court confirmation hearing” by Seung Min Kim, Ann E. Marimow and Aaron C. Davis

• “Ketanji Brown Jackson declares herself a modest jurist, defends record against Republican criticism” by Robert Barnes and Ann E. Marimow


In Post Editorial

• “An opportunity to enlighten” March 21, 2022

• “Republicans boast they have not pulled a Kavanaugh. In fact, they’ve treated Jackson worse.” March 24, 2022


In Columns

• “Forget advise and consent. This is smear and degrade” by Ruth Marcus

• “The eloquent moment that cut through the GOP’s ugliness in the Jackson hearings” by Eugene Robinson

• “The verdict on KBJ’s nomination hearings: Never again” by Charles Lane

FACT CHECKER | “Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders” by Glenn Kessler

• “GOP grandstanders aren’t the only reason Jackson’s confirmation hearings were so disgraceful” by Jennifer Rubin.

•  “Questions for Judge Ketanji Brown Jackson” by George Will


Read the Editorial Cartoons

Art, English, Journalism, Media Literacy, Visual Arts

Four editorial cartoons reflect different aspects of Judge Jackson’s nomination and the confirmation hearings. Give students Visual Commentary | Judge Jackson Hearing. Questions to aid discussion are provided.


The Washington Post editorial cartoonist Ann Telnaes, the second woman to win the Pulitzer Prize for editorial Cartooning (2001) and the first female cartoonist to be awarded the Reuben Award (2017), creates both animated and still visual commentary. Michael de Adder, a political cartoonist for The Washington Post, has received recognition for his editorial cartoons, including the Herblock Prize in 2020. Darrin Bell’s visual commentary appeared in Saturday’s Drawing Board. 

Constitution and the Court
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Get to Know the Supreme Courts
Debate, English, Social Studies, U.S. Government, U.S. History

George Washington appointed the first Supreme Court: Chief Justice John Jay and Associate Justices John Rutledge, William Cushing, John Blair, James Wilson and Robert Harrison who declined and was replaced by James Iredell.


“How Supreme Court diversity has shaped American Life” reviews different “classes” of the Court and key decisions. The question to be answered: How did diversity — Black men, women and people of different faiths and ethnic heritages influence majority and dissenting opinions?


This activity could be extended and become cross-disciplinary by reading one of the suggested books in the sidebar that is by or about a Supreme Court justice. Students could discuss the justices after becoming more familiar with them, debate their impact on the Court and country, and/or write a book review.


Photograph the Court
Art, Journalism, U.S. Government, U.S. History, Visual Arts

The first photograph of the Supreme Court was taken in February 1867 by Alexander Gardiner who along with Mathew Brady was known for Civil War photography. [It is Gardiner who is known for taking images at Antietam, the first battlefield photographed before the dead were buried.] Gardner’s photograph of the Salmon P. Chase Court is also the only one to have anyone other than the justices in the image. This first one included the Clerk of the Court. 

Teachers should also include Mathew Brady’s role and goals in taking Supreme Court group photographs.


Teachers can use the photographs of representative Courts in “How Supreme Court diversity has shaped American life” and/or go to the online exhibit of the Supreme Court to view “All Together For the Camera: A History of the Supreme Court’s Group Photograph.”


Discuss the images in the article first. What details do students notice in each Court’s photograph?

• How many justices are pictured?

• What are the justices wearing?

• What changes occur in hairstyle, neckwear and seating arrangement?

• Describe the setting.

• Where does the Chief Justice sit? How are the other justices arranged?


Teachers may use what they learn from the Supreme Court online exhibit or ask students to work in groups to read the history and share details in their assigned Court group photograph. Knowing the above information, ask students to make a seating chart for the new Roberts Court photograph.



Who Are the First Five?
Social Studies, U.S. Government, U.S. History, Womens Studies

 “Young people can’t name a single Justice on the United States Supreme Court but they can name all three judges on American Idol. It's pretty sad.”   — Sandra Day O’Connor


Ask your students to take Justice Sandra Day O’Connor’s challenge. Name the current Chief Justice of the Supreme Court and the eight justices. For an even more difficult question, ask students to name the justices by order of investiture to the Court.


Give students The First Five. In this activity students get to know the first five women to sit on the Supreme Court.


An extension or alternative to this activity would be to learn about the first and early female lawyers, especially those who argued before the Supreme Court. Give students the book review, “A lawyer who broke barriers, for herself and others.”


The Supreme Court has an online exhibit that may be read for an introduction to the first women admitted to the Bar of the Supreme Court. Visit “In Re Lady Lawyers: The Rise of Women Attorneys and the Supreme Court.”


Get to Know Supremes
Social Studies, U.S. Government, U.S. History

Supreme Court’s justices are nominated by the President of the United States and confirmed (or denied) by the U.S. Senate. In addition to focusing on the first five women to be justices, a study of the Court could include research of these justices that are also “firsts.”


Louis D. Brandeis

Charles Evan Hughes

John Jay

John Marshall

Thurgood Marshall    

Sandra Day O’Connor

William O. Douglas

Sonia Sotomayor

William Howard Taft

Earl Warren


You may also look at the members of one court, for example, the Warren Court. This Court was comprised of men of varied backgrounds and shaped American culture before, during and after serving.

Read About Lawyers, Justices and The Court

Define and Protect Student Rights
Civics, Debate, Journalism, U.S. Government

This You and Your Rights activity focuses on the Supreme Court decisions that defined and protected student rights. Students and Supreme Court Cases Defining and Protecting Their Rights summarizes most of the Supreme Court decisions that pertain to students. Information is given so students have enough information to decide on the two cases they will research further.


Students may prepare a class presentation of the case, a short research paper or a You & Your Rights symposium for students. A debate may also be held with students presenting the case particulars then arguing the majority and dissenting positions.


What the Court Thinks of the Court
U.S. Government, U.S. History

One of the early documents of America’s founding is “To George Washington from the United States Supreme Court Justices, 13 September 1790.”

It begins: “We, the Chief Justice and Associate Justices of the Supreme Court of the United States, in Pursuance of the Letter which you did us the Honor to write on the 3rd of April last, take the Liberty of submitting to your Consideration the following Remarks on the “Act to establish the Judicial Courts of the United States.”2

“It would doubtless have been singular, if a System so new and untried, and which was necessarily formed more on Principles of Theory and probable Expediency, than former Experience had, in Practice, been found entirely free from Defects.”

Older students may be asked to work through the document to determine what concerned the first Supreme Court Justices.

Students may read the official letter of appointment sent by George Washington to his choices for the first Supreme Court. Only one recipient declined. Read “To The Associate Justices of the Supreme Court” written on September 30, 1789, in New York.

• Which qualities did he see in these men?

• What did he expect of them?


Recuse or Stay Seated?
Ethics, U.S. Government, U.S. History

Begin this activity with an explanation of recusal and when it may be used. Also provide students with background on spouses who were activists. One source is “Ginni Thomas is not the first spouse of a Supreme Court justice to make headlines.”

Give the background on Virginia Thomas and the 29 emails she sent to Trump White House Chief of Staff Mark Meadows, as reported by Bob Woodward and Robert Costa.

Read and discuss “Clarence Thomas has some good advice for his wife.”


The activity Recusal and Spousal Interests includes an editorial cartoon and the article, “Ethicists see Ginni Thomas’s texts as problem for court.”


For additional perspective on the issue, read:

• “Justice Thomas’s wife is a political extremist. This is now a problem for the court.” March 26, 2022

• FindLaw staff’s “How Ginni Thomas’s Texts About the 2020 Election Could Impact the Supreme Court.

• “Ginni Thomas apologizes to husband’s Supreme Court clerks after Capital riot fallout


What Is Judicial Review?
U.S. Government, U.S. History

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).

Have students form teams to research the impact of Marbury v. Madison, the Judiciary Act of 1789, writs of mandamus (legal orders compelling government officials to act in accordance with the law), Article VI of the Constitution, and the Fourteenth Amendment.


Get to Know Your Officials
Civics, Journalism, U.S. Government, U.S. History

The Post’s Joe Heim interviewed Bryan Stevenson, founder and executive director of the Equal Justice Initiative for a Sunday Magazine article. His response to a Q&A follows.

It is the stimulus for an activity in which students are asked to learn about their local judges and the cases they hear. Teachers might invite a judge or member of the staff to visit their classrooms. Prepare students to have pertinent questions ready.

For people who want to help make those things happen, what’s your best advice to them? 

Well, I think we have to become more educated and more involved. Most people in this country don’t know who their district attorney is. They can’t name any of the local judges who impose punishment. Those kinds of decision-makers have enormous power and opportunity to immediately impact some of the worst aspects of the criminal legal system. And so I think we all have a role to play because in those communities they are elected, and we just haven’t been particularly engaged or aware. That’s the first thing. And then I think that has to then manifest itself in other political spaces. I mean, people were promising to execute folks and put children in prisons and do all of these other extreme things because they thought voters would reward them for that. And if we actually challenge people, if we condemn elected officials who engage in the politics of fear and anger, we’ll create a very different political environment.


Track Other Judicial Nominees

Civics, U.S. Government, U.S. History

How has President Biden done in nominating federal judges and filling court vacancies? Read and discuss “Biden, who pledged to diversity the Supreme Court, has already made progress on lower courts.” Two different informational graphics are used. Give students practice in reading them.


The Post tracks positions other than judges that Biden has to win Senate approval for before they can work in top roles in his administration. See the Biden Political Appointee Tracker. What role does the Senate play in filling government positions nominated by the president?



Post NIE Guide Editor | Carol Lange

Post NIE Guide Art Editor | Donna McCullough

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In The Know 

Advise and Consent  
Article II, section 2 of the U.S. Constitution gives the Senaate the responsibility to advise the president about nominees and the authority to consent to (approve or reject) those nominations. 


Amicus typically relates to the phrase amicus curiae (plural: amici curiae) which means “friend of the court.”  Amicus is an individual or organization that is not a party to an action but who volunteers or is court-invited to advise on a matter before the court. 


Person that has the legal authority to decide disputes. The arbiter’s decisions are made based on the rules of law and equity


Certiorari is most commonly associated with the writ that the Supreme Court of the United States issues to review a lower court's judgment.  A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.   


In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari. 


Ensuring the truth of, strengthening or approving; the ratification of an executive act by a legislative body


Quality or state of being in accordance with the provisions of a constitution; basic principles and laws of a nation, state or social group that determines the powers and duties of the government and guarantees certain rights to the people


At least one party’s disagreement with the majority opinion; an appellate judge who writes an opinion opposing the holding is said to file a dissenting opinion


Equal Access Act      
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.


Action of behaving in a showy or ostentatious manner in an attempt to attract favorable attention from spectators or the media.


Limited Public Forum            
A limited forum is a type of a designated public forum. Here, the government limits access to a designated public forum to certain classes or types of speech. In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court held that in a “limited forum,” the government may discriminate against classes of speakers or types of speech. However, the government is still prohibited from engaging in viewpoint discrimination. For example, the government may limit access to public school meeting rooms by only allowing speakers conducting school-related activities. It may not, however, exclude speakers from a religious group simply because they intend to express religious views. 


The principal opinion summary by a member of the Court


Marbury v. Madison (1803)
In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.

Before the passage of the Fourteenth Amendment (1869), the provisions of the Bill of Rights were only applicable to the federal government. After the Amendment's passage, the Supreme Court began ruling that most of its provisions were applicable to the states as well. Therefore, the Court has the final say over when a right is protected by the Constitution or when a Constitutional right is violated.


As used by the Supreme Court, refers to several types of writing. Most well-known are announced when cases have been heard in oral arguments by the Court; these are majority and dissenting opinions. Also per curiam opinions, in-chambers opinions and opinions relating to the orders of the Court.


Public forum  
A forum in First Amendment law refers to the place in which a speaker speaks; where everyone could share their views. Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers in these areas enjoy the strongest First Amendment protections.


Withdrawal of a judge, prosecutor, or juror from a case on the grounds that he or she is unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality


Stare decisis (Latin: “let the decision stand”)
In Anglo-American law, principle that a question once considered by a court and answered must elicit the same response each time the same issue is brought before the courts. The principle began with Henry II. Precedents give stability to the rule of law.


Act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability





ANSWERS. Photograph the Court

Students should note that the seating arrangement was established at Charles Milton Bell’s studio in 1894; the velvet drapery was first used by Clinedinst’s studio in 1916, and made permanent by Harris & Ewing in 1930; and the carpeting of the Court’s large, ceremonial conference rooms can be seen in every photograph taken since 1941. Color photographs of the groups were taken since the 1940s, but the Warren Court photograph, June 1965, was the first official in color. Have students why this was not taken when a new justice joined the Court.