Will He Be the First Mexican-American on the U.S. Supreme Court?
WHY YOU SHOULD CARE
He could make the next Democratic president’s SCOTUS short list.
By Carly Stern
“I like the story that architecture tells,” says Justice Mariano-Florentino (Tino) Cuéllar, one leg folded beneath him on a yellow armchair in the chambers of the Supreme Court of California. He points to the window, framing San Francisco’s stately City Hall. “You can see it’s trying to tell you something about how San Francisco’s environment had reconstructed itself after a devastating earthquake and fire,” he muses. Next, he points to the high-rise under construction, where he finds a narrative about architects’ ambition to prove human beings can triumph over their environment.
Cuéllar is fascinated by structure: what it reveals about those who construct it and how it shifts a landscape. Unlike some judges, he’s both worked on the ground to build policy and stepped back to study whether institutional foundations are sound.
A look at Cuéllar’s exquisitely constructed résumé reveals the lines one typically associates with the U.S. Supreme Court short list: elite degrees (a Harvard, Yale, Stanford trifecta), high-level judicial experience and relative youth (at 47, he’s five years younger than Neil Gorsuch, the youngest justice). A Swiss Army knife intellectual, he’s spent his career exploring the intersection of legal arrangements and governing institutions across artificial intelligence, cybersecurity, criminal justice, public health and more.
We faced some of the deep divisions in [California] a generation ago that much of the country is in some ways grappling with now.
But the spires overshadow a gritty foundation, one that makes Cuéllar a compelling choice for a future Democratic president: He was born in Mexico to educator parents, emigrated to the U.S. at age 14 and wound up in California’s Imperial Valley. That would make him the first Mexican American U.S. Supreme Court justice ever, and first foreign-born justice since Austria native Felix Frankfurter, who served from 1939-62.
Cuéllar is a long way from a nomination, much less confirmation to the nation’s highest court. We’re also a long way from the Mexican border town of Matamoros, where Cuéllar’s story begins. He recalls crossing the border to attend school in Brownsville, Texas, until his college-educated parents secured visas that brought them to the U.S. Cuéllar spent his formative years in Calexico, where he was captivated by California’s duality: the beauty and environmental disparities, wealth and poverty. His parents’ constant refrain: Be humble about what you don’t know and look for people who can teach you. As a Harvard undergraduate, Cuéllar hung quotes by his desk. “Treat law as a calling to public service” was a notable one, recalls friend Niko Canner.
Now a naturalized U.S. citizen, Cuéllar’s professional career has bounced from law to policy to academia. He has served on the Stanford faculty since 2001, as a law professor and for a time directed the university’s institute for international studies. Cuéllar worked in the U.S. Treasury Department during the Clinton administration; for Barack Obama’s White House Domestic Policy Council, he worked on everything from immigration to criminal justice reform to repealing the military’s don’t ask, don’t tell policy. He also chaired a task force to help Californians with limited English proficiency navigate the court system and published a book on the history of American security agencies.
In 2014, then-Gov. Jerry Brown plucked him from academia to the state’s highest court — one with an outsized profile, given California’s diversity and liberal policy experimentation. “We faced some of the deep divisions in this state a generation ago that much of the country is in some ways grappling with now,” Cuéllar says.
To have a precedent-setting role on the seven-member court is fascinating and daunting, the judge says. But he brings an air of calm, carefully choosing his words and speaking in graceful prose. He loves science fiction because it says “something about the present and not just the future,” he tells me. Photos of his two children and wife, U.S. District Court Judge Lucy Koh, rest on his book-lined office shelves. Koh, who was nominated by Obama to the Ninth Circuit Court of Appeals but did not clear the Senate, is the first district judge of Korean ancestry and herself a potential U.S. Supreme Court contender (she’s the better, more experienced judge, Cuéllar says).
As with Justice Brett Kavanaugh’s service in the George W. Bush White House, Cuéllar’s political background could provide fodder to foes if he’s nominated to the high court. His numerous academic papers clearly convey his personal views, including a 90-page document detailing the weaknesses of immigration law. Writings on hot-button issues could present more of a hang-up than his experience in Democratic administrations, says Adam Feldman, a civil litigator who runs the Empirical SCOTUS blog. “The fact that he has a paper trail can work both ways.”
When in a landmark privacy rights case, the California Supreme Court upheld the right of police to collect DNA from those they arrest, Cuéllar dissented — citing California’s history of expanded protections for the accused. In another charged dissent, he argued a five-year deadline on death penalty cases was unconstitutional (Gov. Gavin Newsom has since placed a moratorium on the death penalty in California).
Just as Cuéllar’s name was bandied about after Justice Antonin Scalia’s death in 2016, he would be widely discussed again if the opportunity arose. “If the next Democratic president asked me for a short list, Tino Cuéllar would be at the top,” says Erwin Chemerinsky, dean of the UC Berkeley School of Law.
With nomination fights routinely devolving into ugly partisan brawls, one can easily imagine Cuéllar’s becoming an immigration proxy fight, with the judge’s biography lauded as an asset or tarred as a liability. Cuéllar merely offers that it’s “very flattering” to be buzzed about in Washington, but he enjoys working on issues that affect people every day while staying connected to academia.
“Plus,” he says, flashing a smile, “I love California.”