Good for the Goose but Not for the Gander: Applying Title VII Principles to Supreme Court Appointments

During the 2020 Democratic primaries, Joe Biden pledged to nominate a black woman to the Supreme Court. This was likely a wise strategic move, as the pledge prompted the loudest cheers of the night at the Democratic debate where it was announced. Regardless of the practicality of Bidens pledge, refusing to consider people for a job based solely on their race and gender typically implicates Title VII employment discrimination protections. However, Title VII protections do not apply to Supreme Court Justices due to their classification in the excepted service and not the competitive service. This Article looks beyond that fatal determination to analyze what the result of Title VII principles would be if applicable. Topics considered include the historical context of Supreme Court nominations, worker classification, employment agency liability, standing, gender as a BFOQ, case law establishing an expansive interpretation of Title VII protections, and unintended consequences of Bidens position. This analysis provides valuable insight into the purpose of Title VII protections and the significance of discrimination in high-profile government positions.

Good for the Goose but Not for the Gander: Applying Title VII Principles to Supreme Court Appointments Academic Article