Leondra Kruger of California Supreme Court May Be in Line for Biden SCOTUS Pick

The 45-year-old who has argued a dozen Supreme Court cases as a lawyer is on Biden’s short list.

PUBLISHED JAN 27, 2022 12:00 A.M.
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California Supreme Court Justice Leondra Kruger.

California Supreme Court Justice Leondra Kruger.   Lonnie Tague, US Department of Justice / Wikimedia Commons   Public Domain

On Jan. 27, 83-year-old United States Supreme Court Justice Stephen Breyer announced that he would retire from the bench later in 2022. That opened a spot for President Joe Biden to make his first nomination for a new member of the Supreme Court. During his campaign, Biden pledged to appoint a Black woman to the high court, and according to spokesperson Jen Psaki, Biden stands by that campaign pledge.

High on Biden’s list, according to a New York Times report, is California’s own state Supreme Court Justice Leondra Kruger. At age 45, Kruger has served on the state Supreme Court since 2014 after being nominated by Gov. Jerry Brown. If she were nominated and confirmed to the SCOTUS seat, she would be the youngest justice on the current court and the youngest to take a seat since Clarence Thomas, then 43 years old, was appointed by President George H.W. Bush in 1991.

She would also become the first SCOTUS justice to be elevated from a state court, rather than from the federal court system, since Ronald Reagan appointed Sandra Day O’Connor—the first woman to serve on the Supreme Court—in 1981, after O’Connor had served in the Arizona state court system.

Known for ‘Ruling as Narrowly as Possible’

Kruger would be the first Black woman to serve on the U.S. Supreme Court, but on California’s high court she is the second, following Janice Rodgers Brown, who was appointed by Gov. Pete Wilson in 1996. But while Brown, who was later named to the District of Columbia U.S. Court of Appeals by President George W. Bush, was known as a consistently conservative justice, Kruger’s record is more middle-of-the-road. 

According to a 2018 Los Angeles Times profile, Kruger “is more likely than her Democratic colleagues to vote with the Republican appointees,” a record that derives less from political ideology than from what her colleagues have described her tendency to be “meticulous, hewing to the precise text of laws and ruling as narrowly as possible out of concern that a result in one case could have unintended consequences in another.”

On a California Supreme Court known for its frequent unanimity, Kruger voted with the unanimous court in a case invalidating a law that would have required Donald Trump to reveal his tax returns before running for reelection in 2020. She also voted with all other justices in the Dynamex decision, which made it harder for employers to misclassify workers as “independent contractors.” In 2019 she authored a majority opinion in a case that banned police officers from conducting warrantless searches at traffic stops when a driver refuses to provide identification.

In one high-profile opinion, Kruger wrote for a unanimous court in overturning a death sentence for Scott Peterson, who was convicted of murdering wife Laci Peterson and their unborn child, in a case that dominated national headlines in 2002 and 2003. Peterson had been sitting on death row for 15 years when Kruger and the California high court found that the trial court made “significant errors” in the penalty phase of his trial. Peterson was resentenced to life behind bars without a chance of parole.

Kruger told the Times that her aim as a jurist is to enhance “the predictability and stability of the law and public confidence and trust in the work of the courts.”

A SoCal Native

Kruger’s mother is a native of Jamaica. Her father was the son of Jewish immigrants from eastern Europe. Both of her parents were doctors in the Los Angeles area, and Kruger went to high school at the private Polytechnic School in Pasadena. She went to Harvard as an undergraduate, then graduated from Yale Law School, where she was the first Black woman to hold the prestigious position of editor-in-chief at the Yale Law Journal.

While in law school, she held a summer internship in the U.S. Attorney’s office in Los Angeles. When she entered private practice, she represented several large corporate clients including Shell Oil and the telecommunications giant Verizon, and also taught courses at the University of Chicago Law School.

Supreme Court Experience

Her relative youth notwithstanding, Kruger already has significant experience at the U.S. Supreme Court. She served as a clerk for Justice John Paul Stevens, who, though a Republican, became a leader of the court’s “liberal wing.” Kruger clerked for Stevens during the 2002-2003 SCOTUS term.

From 2007 until she was named to California’s high court, Kruger was a lawyer in the office of the U.S. Solicitor General. That’s the office that argues the government’s cases in the Supreme Court, a duty that Kruger undertook 12 times.

Perhaps the most significant case she argued on behalf of the administration under President Barack Obama was a case challenging the “ministerial exception” to employment law. In other words, courts have generally recognized that religious organizations may choose their own leaders, and cannot be sued for gender or racial discrimination. In the 2012 case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC Kruger argued, on behalf of the government, that the ministerial exception should not exist, and that religious groups have only the same rights of free association as any social club or organization.

In another case, Holder v. Gutierrez, Kruger argued the government’s position that the child of a foreign national living in the U.S. must meet certain criteria, such as having lived in the U.S. for five years, to get a deportation order canceled. Though Kruger was arguing—successfully—to deport the child in the case, the UC Berkeley Law School’s ScocaBlog cautioned that “it would be a naïve mistake to attribute any particular political or policy views to whatever positions Kruger argued in her years with the Solicitor General.” The job of a lawyer in the SG’s office is to argue for the government’s views, not her own.

ScocaBlog was impressed with Kruger’s poise in arguing cases before the country’s highest court, praising her “remarkable ability to stay calm in the face of intense questioning” from the often hostile SCOTUS justices.

Californians Are Rare on the Supreme Court

If she is picked by Biden and makes it through the Senate confirmation process to become the 116th Supreme Court justice, Kruger would become only the sixth from California—and the only Californian on the current court. Breyer is a native of San Francisco. In fact, Kruger would be one of only two justices hailing from any state west of the Rocky Mountains. Donald Trump appointee Neil Gorsuch of Colorado is now the only westerner on the Court.

Though Kruger is considered to be among the favorites to get the nod from Biden, her nomination is far from a certainty. Judge Ketanji Brown Jackson, who has served on the D.C. Court of Appeals for less than a year after being nominated by Biden in 2021, is widely thought of as the frontrunner.

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