Consider This from NPR - What Supreme Court Justice Stephen Breyer's Retirement Means

Episode Date: January 26, 2022

After 27 years on the Supreme Court, liberal justice Stephen Breyer is retiring. His departure won't change the balance of the court, but it will give President Biden a chance to put his stamp on it ��� and cement a new, younger justice in place for decades. NPR legal affairs correspondent Nina Totenberg explains who might replace Breyer, and NPR political editor Domenico Montanaro outlines how the process will unfold. In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

The news broke right around noon on Wednesday. Some breaking news. This is big news. An enormous change. 83-year-old Justice Stephen Breyer, counted as a member of the Supreme Court's liberal wing for more than a quarter century, is retiring. He is going to step down at the end of this term. That means Breyer will still weigh in this year on controversial cases involving gun rights and abortion. But then, at the end of the summer, Breyer will step down from the court after 27 years.

I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. That was Breyer speaking to NPR just last September when he refused to talk much about the idea of retiring, something liberals have been loudly urging him to do ever since Joe Biden won the presidency and the power to name Breyer's successor. When exactly I should retire or will retire has many complex parts to it. Consider this. The decision may have been complex, but what happens now is clear. Justice Breyer's retirement will not change the balance of the court, but it will give Democrats a chance to name a new, younger justice who could serve for decades. And in Washington, the coming months will be dominated by a fight over who that person will be.

From NPR, I'm Elsa Chang. It's Wednesday, January 26th. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today or visit wise.com. T's and C's apply. It's Consider This from NPR. You would place your left hand on the Bible, raise your right hand, and repeat after me. I, Stephen Breyer, do solemnly swear. I, Stephen Breyer, do solemnly swear.

In 1994, when Stephen Breyer was sworn in as a justice on the Supreme Court. So help me God. So help me God. Congratulations. He took a moment to thank members of the Senate Judiciary Committee who had voted to give him the job. And especially its chairman, Senator Biden, its ranking Republican Senator Hatch. 27 years later, of course, that senator is now president of the United States, and one with a very full plate. The threat of war in Eastern Europe, a pandemic about to enter its third year, rising inflation, and a legislative agenda that is not moving as fast as Democrats would like.

And now, the latest challenge, replacing the justice he voted to confirm 27 years ago and guiding that nominee through the Senate confirmation process. NPR's Nina Totenberg has this look at who that person might be. The two leading contenders are said to be California Supreme Court Justice Leandra Kruger and federal Judge Katonji Brown Jackson. Prior to becoming a California State Supreme Court Justice, Kruger served as an Assistant U.S. Solicitor General and Principal Deputy in the Justice Department. She was hired initially by then Solicitor General Paul Clement during the George W. Bush administration and served another six years in the Obama administration, earning high marks as a Supreme Court advocate. Judge Jackson served eight years as a federal trial judge and was appointed last year by

President Biden to the U.S. Court of Appeals for the District of Columbia, the court that three of the current justices served on prior to their elevation to the Supreme Court. Jackson, like Kruger, began her career with a coveted Supreme Court clerkship. She was a lawyer in private practice, served as vice chair of the U.S. Sentencing Commission, and worked as a federal public defender representing indigent defendants. That experience would be unique on the current court, where four of the justices have experience as prosecutors and none as a public defender. Jackson was also on President Obama's shortlist for the Supreme Court in 2016. Both women are young. Kruger is 45, Jackson is 51,

and both have stellar legal credentials. Whoever Biden picks, she will have big shoes to fill. Breyer, over his more than quarter century on the court, wrote some of its less glamorous but legally most significant decisions. Last year, he wrote the court's 8-to-1 decision expanding free speech rights for students and declaring that a school could not punish a 14-year-old cheerleader for her off-color, off-campus speech. In another major case, he wrote the court's decision tossing out a challenge to Obamacare for a third time. In recent times, perhaps his most well-known decision was the one he wrote for the court majority in 2016, striking down a Texas abortion law copied by other states.

Breyer said the law, without any demonstrated safety justification, resulted in the closing of half the clinics in the state. The closures mean fewer doctors, longer waiting times, increased crowding, and significantly greater travel distances, all of which, when taken together, burden a woman's right to choose. It was typical Breyer, practical and straightforward. There were no majestic phrases, but the effect, at the time, was profound in reaffirming the rights of women to terminate pregnancies. In addition to his written contributions to the law, Breyer, a moderate liberal, played a major and important role behind the scenes, pushing and prodding his fellow justices to achieve consensus and compromise on everything from

Obamacare to affirmative action. But with the addition of three Trump conservative appointees and a far more ideological six-to-three conservative majority on the court, that task became increasingly difficult. While last term Breyer still seemed able to craft compromises behind the scenes, suddenly this term, the court seemed poised to reverse long-established legal precedents he cared deeply about, including abortion, and at oral argument Breyer's frustration and disappointment were clear. Faced with that reality, he made the decision to retire. Breyer believed in persuasion and viewed a dissent as a failed opinion. But he did dissent, and sometimes passionately, as he did when the court in 2007 invalidated voluntary school desegregation plans in Louisville, Kentucky, and in Seattle that were aimed at preventing previously segregated schools from resegregating. Pointing to the fact that the five-justice majority included two justices new to the court,

he said this in dissent. It is not often in the law that so few have so quickly changed so much. Practical yet deeply intellectual, Breyer authored multiple books about the law, in two of them arguing against the new conservative doctrine of originalism, the idea that the Constitution means what the founders thought it did when they wrote it. Breyer countered that the founders understood perfectly well that nothing is static and that the broad concepts of divided liberty set out in the Constitution were meant to adjust to the times. Even the founders themselves quickly disagreed

about the meaning of the Constitution they'd just written, Breyer observed. The job of a Supreme Court justice, he argued, is to apply the Constitution's values to modern circumstances using the tools of judging, text, precedent, and the purpose of the constitutional provision at issue. In other words, to establish borders. And we're the border patrol. Life on the border is sometimes tough. And whether a particular matter, abortion or gerrymandering or school prayer, whether that's inside the boundary and

permitted or outside the boundary and forbidden, is often a very, very difficult and close question. Justice Stephen Breyer, who prides himself on being willing to see both sides. That was NPR Legal Affairs correspondent Nina Totenberg. Of course, the last time a Democratic president had the opportunity to fill a Supreme Court seat, it didn't quite work out. The American people should have a say in the court's direction. It is the president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent. Republican Mitch McConnell, then Senate Majority Leader, refused to allow the Senate to take up Barack Obama's nomination of Merrick Garland back in 2016. This was after Justice Antonin Scalia unexpectedly died. And

what happened after that in the Senate isn't something we're going to see this time around because Democrats, not Republicans, control the chamber. But only by a razor thin margin. And that may be one reason Breyer is choosing to step aside now. NPR political editor Domenico Montanaro has more on that and the timeline for a replacement. He spoke to host Asma Khalid. Hey, Domenico, it is very good to speak with you. Hey, Asma. So let's begin with a basic but important question.

Why is Justice Breyer doing this now? It's really all about politics. I mean, the ideological direction of the court has shifted significantly in the time that Breyer has been on the court. And Democrats are facing a potential red wave in this midterm election year. Republicans favored to take over the House. And while the Senate is more competitive, it's 50-50. It's as close as you can get. And the Senate, where justices are confirmed, you know, you only need 50 votes, plus the vice president, given that Republicans, when they were in power, did away with the filibuster requirement for Supreme Court justices. So talk to us about what kind of pressure Justice Breyer has been facing

to retire at this point. I mean, it's been pretty significant. I mean, you'll remember that during the Obama years, a lot of people on the left wanted the late Justice Ruth Bader Ginsburg to retire in case a Republican won the White House in 2016. And of course, one did and appointed three justices, including Ginsburg's replacement. They don't want that to happen again. Breyer's 83. He's quite aware of the politics at play. When he was first appointed to the court in 1994, it was majority liberal. Now it's majority conservative. And this retirement gives Biden and Democrats the chance to at least hold serve ideologically on the court and nominate someone younger who

can serve for a couple generations potentially. So let's talk about that. I certainly recall during the presidential campaign, now President Biden, at the time he promised to diversify the court. What are you hearing about specific names of potential replacements? Yeah, President Biden specifically promised before the South Carolina presidential primary to nominate a black woman if he were elected. Here's what he said in a debate there before that primary. The fact is what we should be doing. We talked about the Supreme Court. I'm looking forward to making sure there's a black woman on the Supreme Court to make sure.

Not a joke. Not a joke. I pushed very hard for that. And my mother's motto was, she said, you know, you're defined by your courage, you're redeemed by your loyalty. I am loyal. I do what I say. Key there. I'm loyal. I do what I say. And there are two names who have risen to the top. Federal Judge Ketanji Brown-Jackson and California Supreme Court Justice Leandra Kruger. Ketanji Brown-Jackson is 51. She serves on the U.S. Court of Appeals in Washington, D.C.

She's been in that post for about a year and served as a federal judge before that. Kruger's even younger, 45, and served as acting solicitor general in the Justice Department. But for those who want to talk about their age or experience, we should remember that several of the sitting justices weren't even judges at all, if very long. Justice Roberts, for example, served on the D.C. appellate court for only about two years. Justice Clarence Thomas for about a year. And Justices Kagan and Amy Coney Barrett were never judges. So just briefly, what is the timeline here? When can we expect a new justice on the court? Yeah, this is all expected to go pretty quickly.

Breyer's expected at the White House tomorrow to make it official. Then once Biden nominates someone, Senate Majority Leader Chuck Schumer says a nominee will get a, quote, prompt hearing and get through with, quote, deliberate speed. And deliberate speed could be just over a month, barring any issues with COVID and senators. You know, the timetable should be like what Republicans had moving Justice Amy Coney Barrett through in 2020. That was NPR political editor Domenico Montanaro. It's Consider This from NPR. I'm Elsa Chang.