The upcoming departure of Stephen Breyer, the oldest judge on the US Supreme Court and one of three progressive judges, has triggered a frenzy of speculation on who will get the nod to replace him. Ordinarily I avoid markets like this like the plague, since they are so dependent on the whims of a single person whose mind we cannot know. But Supreme Court watchers have become extremely good at this game, and I might make an exception here.

The Criteria

In theory Biden can nominate literally anyone living with no constitutional restrictions. In practice, there are really only three requirements for the job:

1. The candidate must be ideologically consistent with the President and Senate majority. Democrats control both of those houses (just), so there is no need to try and propose a compromise candidate;
2. The candidate should be under 60, and ideally under 55. The job is a lifetime appointment, so there is a clear partisan advantage to younger candidates; and
3. The candidate needs to be a broadly qualified judge. This requirement used to be very stringent, with the American Bar Association having a virtual veto of nominees it didn’t deem top notch, but that has weakened over time.

Even given Joe Biden has further narrowed the list by promising to nominate a black woman, it should be anyone’s guess who gets the nod.

But it isn’t, because the Supreme Court has become so scrutinised by the media that journalists reporting on it have become near perfect at predicting the candidate.

The History

In 2020 Amy Coney Barrett was described as being ‘widely considered to be the front runner‘ by the Associated Press.

The 2018 nomination choice was described as ‘more fluid‘ than others, but the day the vacancy was announced Brett Kavanaugh was already the first name on shortlists in the media.

In 2016/17 Neil Gorsuch wasn’t such a prominent frontrunner, but as early as late November 2016 (the announcement was made in January 2017) was considered the joint leader by law professors.

2016 saw an exception: Almost all early reports had Sri Srinivasan top of the list and Merrick Garland just one of the pack.

But that was rare. In 2010 the day after Paul Stevens announced he would retire the press knew that Elena Kagan was one of only three likely names.

2009 was the same. Sonia Sotomayor was described as the ‘top candidate‘ within hours of the vacancy being announced.

The Frontrunner

So who is on Biden’s list? Well, Ketanji Brown Jackson is apparently one of two ‘frontrunners‘. CNBC list her first and call her ‘a top prospect‘ CBS says she is ‘considered a frontrunner‘ too, listing her first in their coverage and dedicating more column inches to her than anyone else.

The markets think the same, despite Biden having not even announced a formal shortlist or interviewed anyone Jackson is 1/2 at Ladbrokes and similar on the exchanges. That is a pretty short price, but a justified one. Aside from anything else, Joe Biden isn’t exactly the kind of guy who likes to take risks and surprise people.

I am still wary of betting on something which could be upturned by a single person changing his mind or his intentions being misjudged, but I am also tempted. When I first say these odds I thought they were far too short, but the more you read the less common Supreme Court upsets are.

Pip Moss posts on Political Betting as Quincel. He has no bets at present on the next Supreme Court Nominee. He would accept the nomination if Biden feels like a wildcard pick. You can follow him on Twitter at @PipsFunFacts