Strict Scrutiny - Comeback Kid

Episode Date: January 27, 2022

Our boy Steve is retiring. Here are our thoughts on the timing, his legacy, and potential successors. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. Mr. Chief Justice, I am pleased to report episodes every Monday. Listen and subscribe wherever you get your podcasts. not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to another emergency episode of Strict Scrutiny. And this one, happily, is not about the persistent assault on reproductive rights. Instead, it is about our favorite justice, one Stephen G. Breyer.

Welcome back to the Circle of Trust, Stephen G. Breyer. You're back with friends. You were on the outs for several months there, but we welcome you back with open arms. Should we wait? Should we introduce ourselves? Oh, yeah. I'm saying, since he doesn't know who we are. I'm Stephen G. Breyer's new best friend, Leah Littman.

I'm Stephen G. Breyer's second best friend, Melissa Murray. And I'm feeling guilty about all of the thoughts I've had about Stephen Breyer over the last 13 months, I would say, of my life. I'm Kate Shaw. Wow. Stephen G. Breyer, you know, you turned it around. You are the comeback kid. So that's who you are. Let's talk about this turnaround because we're recording this episode after it was reported that Justice Breyer will be announcing his retirement from the Supreme Court.

This has now been reported by several outlets. But broken and scooped by Pete Williams of NBC News. So props to Pete Williams. Although Jeffrey Toobin did kind of like weirdly float it last week and we were all dubious. He's a little vindicated. Yeah. It's a little odd because Pete Williams first broke the story. I think every major outlet has matched the reporting. So he's going and yet he himself has not issued a statement. There's been no letter that the public has seen sent to the president making the announcement. So the terms of the retirement are sort of yet to be determined. But I think we can safely say that Stephen Breyer is- Well, or that he's balancing whether or not he's going to leave and how he's going to do it, which would be peak Stephen G. Breyer. He's been performing this multi-factor balancing analysis for the last 13

months. He's now generated an answer, and the answer is retire. So that's the process that played out. But it is worth walking through a little bit of the last year, right? The source of our frustration and exclusion of Breyer from the circle of trust. I do think we have to explain ourselves. Increasingly outer circles. We have to explain ourselves. I think that's right. the court or even who suggest the politics, not legal merits, drive Supreme Court decisions were making a fundamental error, insisted that upon taking the oath of office, all judges and justices are fundamentally loyal to the rule of law and not in any way to the political party that secured their appointment. So these were the things he was insisting. And not just that, he also eschewed the possibility that stepping down so that a president from the party that nominated you could name your successor was somehow out of step with this idea of an apolitical court, even though that's been happening for forever.

And again, it sort of went to his retirement. Like he seemed to be unwilling to step down at this moment because it would be viewed as shaped by political considerations. Yeah. So he gave, you know, an interview to Joan Biskupic saying he wasn't going to retire because he was enjoying his job and that, you know, purposefully stepping down so that the president of the same political party that appointed you could replace you, would somehow politicize the Supreme Court. And he was giving this press tour at the same time that the Supreme Court was allowing the notorious Texas SBH to go into effect and that the court was coming under increasing criticism and pressure for being political. And his conservative colleagues are out there on this PR tour saying, no, we're definitely not political. This is totally legitimate. We've just nullified abortion,

you know, nothing to see here. And he's riding the same press circuit saying- And legitimizing them. Exactly. Exactly. Because then it doesn't look like a singular ideological project or the project of one political party. And so that was a source of our frustration, or at least some of my frustration. There was more frustration that he added onto it. So that was the base level grievance that we had with one Stephen G. Breyer. And he amplified that as the term went on with his conduct at oral argument, where it seemed like he was sort of grandstanding. It was a lot of sort of performative, like, I'm Stephen G. Breyer. I have a

hypothetical. It has a spaceship. It has a this. And when his other colleagues, I think, genuinely seem to not only understand the gravity of the situation, which I'm sure he did, but also seem to communicate that the situation was indeed grave. And instead, he was kind of yucking it up and, you know, just seemed to enjoy the sound of his own voice a little too much. Which, to be fair, he may have always done, but the context seemed so different this term as the court, you know, with this new conservative supermajority seems to be, as we've discussed, just rapidly just taking through the items on the conservative legal movements to-do list. And again, yeah, he seemed to be just sort of enjoying the job and not taking the context sufficiently. Yes, you can't get abortions in Texas, but have you heard this joke I am about to say on the bench, ladies? It's going to be a good one. And thinking about last fall, not just allowing SB8 to go into effect, but, you know, curtailing the power of the federal government to respond to the COVID crisis, right?

First through invalidating the CDC eviction moratorium, and then obviously more recently in the, you know, not pure shadow docket ruling, but the hasty and terribly reasoned decision preventing enforcement of the OSHA workplace rule. And, you know, poised to do much, much more. And he was always, I mean, he always came in with the other two liberal justices on the other side of those decisions. But it was sort of in the wind up in oral argument where, you know, he was in the public eye, it just seemed like he could not read the room. Right. And so then the question is, what changed? What caused him to all of a sudden in January make the decision that I'm going to retire? Because that's pretty early in a Supreme Court term to announce a retirement if you

were planning to retire at the end of the term. So both Justice John Paul Stevens and David Souter announced they were retiring in April when they said we are going to step down at the end of the term. Justice Kennedy announced he was retiring on the very last day of the Supreme Court term in June. And so this January announcement is on the earlier side. Very early. Yeah. And again, it follows on the heels of this press tour in which he was saying something different and singing a different tune. So are you saying that the press tour is over? Seems to be over.

There may be a new one, but I suspect the tone would be different. that the failure to announce a retirement in a more timely or more traditional time frame is linked to the press tour and the sale of the books? That actually wasn't what I was suggesting. Okay. All right. Okay. I just want to be clear. I was suggesting that something happened in between the press tour and him writing this book and selling the book and this announcement. That is how cynical I have become because I thought you were saying that he ended the tour and was like, and now I'm there.

Well, he did say, and I think it was in the Biskubic interview, he said something about how the court's recent radical rulings weren't great for the sales of his book that insisted the court was a nonpartisan and neutral institution. How inconvenient for you. Keep it under wraps. Keep it under wraps. Keep it under wraps. My question was simply, he sincerely believed, or so I think, as of September 2021, that the Supreme Court was an apolitical institution and that people shouldn't be criticizing it.

So what happened? That's, again, my own intuition. Do you think that he got a draft of the Dobbs opinion and was just like, you've so thoroughly eviscerated what I did in Whole Woman's Health that I can't even go on? Like, I just, like, briar out. That has to be a possibility. So Dobbs is the challenge to the Mississippi abortion statute where Mississippi has asked the court to overrule Roe. And yeah, it's possible, right, that Amy Coney Barrett hits send on an opinion that says Roe was wrong the day it was decided. Ladies can drop off their babies at police stations.

We've solved sex equality, abortion done. And Stephen Breyer is like, get me Pete Williams. I'm coming for the door. You know, I don't know. One possibility that I floated before we started recording is even darker than that. And just to be clear, I don't actually think this happened, but the thought did cross my mind, which is earlier this week, the Supreme Court announced that it was going to hear two cases challenging universities' ability to consider race when making admissions decisions and, you know, a challenge to affirmative action policies. What if the chief justice was just like, hey, guys, here's a draft of the pre-written opinion I wrote overruling Grutter that I've been fantasizing about for like the last decade.

Why don't you just check it out now? And Steve Breyer is like, okay, I just I can't with this anymore. Like you people are too much to me. You have destroyed my Steve Breyer's optimism in the world. Let me throw a third possibility into the mix, which is Sam Alito's majority opinion in the New York gun case circulated in draft yesterday. And it not only permits but requires every resident of New York to carry a firearm on the subway in particular. And you have to carry two if you're traveling at night. And I mean, Breyer, one of my favorite Breyer writings ever is his descent in Heller, which just says like reasonable regulations have to be permitted. And it goes through this

very pragmatic Breyer-esque explanation of sort of why this D.C. regulation was in fact reasonable. And that was crushing in exactly the same way that these other possibilities were. All of these could have happened. So our take on this is that the conservative supermajority, the 6-3 supermajority broke Stephen G. Breyer. Yeah. I think he's basically saying this book was about the old court and this new crop of justices is something else entirely and I can't. Well, I think that's enough for me to relinquish my grudge. I think it is too. Like they broke him. They broke him. Just to add something else to the table, we've seen over the last several months, and I believe also several weeks, Republican senators basically suggesting they wouldn't confirm a

nominee to the Supreme Court from President Biden, were they to retain control in the midterm elections or before, you know, if something terrible were to happen to a Democratic senator. And it's possible that there too, Justice Breyeryer realized we're no longer living in the world that used to be the world in which he worked in the Senate when it truly was a bipartisan institution. And we've suggested they have broken Stephen Breyer. Maybe they've broken the Senate too. deeply sad, you know, because Justice Breyer really was someone who believed in the goodness of people in institutions and thought like, okay, I can convince them and this can be a good court. And if he no longer believes that, and if he saw enough to change it on some level, that's just so sad that we have moved so far away from the world that he grew up in.

And that was very much a part of his worldview. And then on the other hand, you know, again, I have been ragging on Justice Breyer for a while this season. But I've also said many nice things about him previously. It is to his credit that he updated his views. Like he looked around at what was happening in the world and realized, you know, it's no longer consistent with my priors and like what I want to do. So I would say that. He read the room. Yes. He read the room. Exactly. Good for Neil Gorsuch is thus far unable to do and mask up. So just – And read it not only in the way – I mean, so, Leah, you mentioned both Justice Stevens and Justice Souter announcing their retirements in April, and that is more customary.

So I think that they don't love being lame ducks for this long a time. And like every time they open their mouth in oral arguments and, you know, in opinion drafting, et cetera, everyone knows you're on your way out. And so that probably does remove a little bit of leverage you might have with your colleagues. But A, maybe he's saying he didn't have any anyway. And B, I think this is a selfless act, right? The idea is to give Biden a chance to nominate and have confirmed justice in plenty of time for the end of the term. Maybe something goes sideways, which I do not expect with any of the shortlisters who we will talk about in a minute. But I do think it's pretty selfless of him to have announced this early.

So this is the irony of Stephen G. Breyer. So he has eschewed the whole idea of stepping down because it would look political if he did it at a certain time. And now he's done it in this moment where Biden is battered, bruised, desperate to get Build Back Better through. And he's handed him the opportunity to nominate the first Black woman to the court, something that I think will be incredibly bullying to the Democratic base, which has been pretty demystified, disaffected, all of the disses over the last couple of months. So in a weird way, this is a political gift to Biden. Yeah, and Dolly Lifford has a great column

making essentially a longer version of that point. And it was certainly the case that the vacancies that President Trump filled were huge political boons for him. Both the vacancy that he inherited was probably a part of his winning the presidency. Inherited is a very interesting way to refer to what happened. Well, he didn't steal it. Mitch McConnell did. What's a better verb there?

He accepted stolen goods. Appropriated. Fence. The fence seat. The fence seat, which will henceforth be known that way. So yes, it is a huge boon to Biden politically. But just to go back to that point, like if that is really what is happening, I mean, again, there too, this just feels like Justice Breyer taking one for the team and doing something that is not what he wants to do. Yes, it's very selfless. Like he loves this job. He wants the courts to be apolitical. And yet, like, he sees the world around him. And it's not the way he wants it to be. And so he's taking one for the team. And like, he's sacrificing what he wants and like his views for like the greater good and the good of the country. And so

this is the mensch that I knew Justice Breyer was. Like, before he started to annoy me, you know, we called him our fellow Cassandra. We did. We should send him some merch. Absolutely. We will send him some merch. Welcome him back to the Cassandra Club. I will repeat the offer we've made previously.

Justice Breyer, you are welcome to join the podcast when you find some additional time on your hands. You want to ask those questions? As many hypotheticals as you want. It will be amazing. Melody will only edit you a little bit. It will be great. It will be great for him, right?

Like he'll get to ask questions. He needs a Melody. Oh, my God. Exactly, and Melody will produce him. This is a win-win. Brilliant. It is. We could even make a pot roast.

He's got that great pot roast recipe. We'll make some pot roasts. We'll hang out. Wear the merch, like mensch merch. We could even make a pot roast. He's got that great pot roast recipe. We'll make some pot roast. We'll hang out. Wear the merch. Like, mensch merch. We should do it. I love it. Yeah.

I love merch. Mensch merch. All right. So who's going to replace this mensch? I feel like it is two obvious frontrunners who are consistently mentioned here, although I do think the list is getting a little bit longer. Well, they're frontrunners, we know, because the conservatives have already begun the process of smearing them as liberal firebrands, which neither of them is. No.

No. The two names that are often mentioned as replacements for Justice Breyer are, one, Judge Katonji Brown Jackson, recently confirmed to the U.S. Court of Appeals for the D.C. Circuit, formerly a district judge on the U.S. District Court for the District of Columbia. Judge Jackson actually clerked for Justice Breyer on the Supreme Court. After she clerked for Justice Breyer, she worked as a public defender. She has also worked on the Sentencing Commission. I think it's very important to have judges who understand federal sentencing. You know, Justice Breyer was formerly on the Sentencing Commission. I think it's very important to have judges who understand federal sentencing. You know, Justice Breyer was formerly on the Sentencing Commission. His brother, Judge Breyer, runs a Sentencing Commission now. I think that's a lot of reasons why Judge Kataji Brown Jackson might be

a logical replacement for Justice Breyer. She was also recently confirmed to the U.S. Court of Appeals for the D.C. Circuit. All of the Democratic senators enthusiastically voted for her. She was also recently confirmed to the U.S. Court of Appeals for the D.C. Circuit. All of the Democratic senators enthusiastically voted for her. She also received several votes of Republican senators as well. So that seems like you've already done the vet. It could be an easy confirmation. You know, she she's just like a warm, lovely person. Like you put her in a hearing and people are really going to like her. So, you know, this. There is to a degree like a don't complicate it Biden kind of feels. Don't make this hard. She's so great. And yeah, I don't, I can't imagine her losing a Democratic vote. And the fact that she got Collins and Murkowski and Graham to support her for the D.C. Circuit puts them in a tough position if they want to turn around and oppose her. So I

think she has a real chance of picking up a couple of Republican votes, which should not be the only thing that matters and shouldn't be necessary. But I think we'll be helpful. Well, all we have to do is get all 50 Democrats in line and then Kamala Harris to break the tie, which seems likely. That's clearly right. Although, of course, there are some conservative commentators who are already floating this theory that the vice president can't break a tie in a Supreme Court nomination, which we're not going to give airtime to because it's clearly wrong. Did John Eastman come up with that? Was that another John Eastman greatest hit? I'm not sure where it originated. Also funded by the

Koch Brothers Claremont Institute, like insert your whoever you want there. The other front runner is Leandra Reed Kruger, who is currently an associate justice on the California Supreme Court. She is also a class ahead of me at Yale Law School, so I actually know her. And she's also a really lovely person. She was the first black woman to be the editor-in-chief of the Yale Law Journal. She clerked for John Paul Stevens. And then she served in the Solicitor General's office for a long time. And she was actually rumored to be a frontrunner for the SG Post. I think there's a lot of

discussion of her maybe coming back to D.C. to do that. But maybe she was waiting for something else in D.C. But she is, I think, the other person who sort of stands out as a very clear frontrunner. She's known on the California Supreme Court for being more of an incrementalist. She has said that her philosophy of judging is about adherence to the rule of law, incrementalism, precedentialism. She's not one for big, huge moves. And so again, I think this would be a very easy case for the Senate. Yeah. And she, we should say, is a little younger than Judge Jackson. So she's 45. She's in my demographic. So Jackson, I think, is 51. So they're both very much like in the range of young justices that you

would want. And both, as you were just saying, Melissa Sterling credentials, and I think would be hard to really mount an objection to. Oh, they will find them. The other things I wanted to add about Justice Krueger is she was hired into the Solicitor General's office in the Bush administration when Paul Clement was Solicitor General. It's possible that that could generate, you know, bipartisan support and Republican lawyers, you know, vouching for her. Again, not maybe Paul Clement will be the new Lisa Blatt. Right. Not clear that that should matter or how much that might matter to votes. But that's a possibility. And Justice Krueger would also bring some professional diversity,

having served on the state Supreme Court as well. And there used to be a lot of justices who got nominated to the U.S. Supreme Court from state courts. And it's just we don't really see that anymore. It's like Brennan, O'Connor, Souter. We just haven't seen it. Like it's been much more common. Oh, and Cardozo. And they're plenty historically, but just more recently. More recently, it's just been the D.C. Circuit, Roberts, Thomas, Scalia, Ginsburg, Kavanaugh. So Katononji Brown-Jackson, that would obviously augur in her favor. Other potential or prospective nominees, Sherrilyn Eiffel, Justice Eiffel, Justice Eiffel. So, I love this. She would be a transformational appointment. She would be transformational. She would really change the institution. I love this. If Biden wants to think about this appointment that way, she's who he should

pick. I mean, confirmation, you have to, you know, I don't know if she would get confirmed. Well, they would come for her. She would change the institution. But I mean, we haven't had a justice who is also a civil rights lawyer since Ginsburg and before that Thurgood Marshall. And she is the director counsel of the institution that Thurgood Marshall helmed for so many years. I mean, there's some really obvious symmetry between the first black woman justice and the first black justice so many years. I mean, there's some really obvious symmetry between the first Black woman justice and the first Black justice that would be, I think, really compelling. She's also an NYU alumna. And I think a purple necklace on those robes would be money. So good. Right? And look, she's also a Peloton aficionado. So she and Joe Biden can talk about their Peloton-o-mania.

Again, she's just brilliant. She is inspiring. She would be public facing because she has been in the public eye for so long. I can't imagine that she would retreat fully from it. And that would be, I think, a great development for the court. Yes. So some other names that have been mentioned include J. Michelle Childs, who has been nominated to the D.C. Circuit. She's currently a district court judge in South Carolina, and she is very friendly with James Clyburn, who really pushed for her nomination to the D.C. Circuit. And of course, Clyburn and South Carolina have a lot to do with Joe Biden becoming president. So that sort of political consideration, I think, may come into play here as well. Another name that is also not as well known, but really powerful,

is Judge Leslie Abrams Gardner, who is a district court judge in the Middle District of Georgia. She's the younger sister of Stacey Abrams, and she is my moot court partner from first year. She's terrific. And like her sister, a really compelling story. And we all know that Georgia really loomed large in securing Joe Biden's victory. And Black women in Georgia came out in full force. And maybe this will play into that as well. Although I think it's going to be harder to see a district court judge being nominated to this position, especially when there are some good appellate judges that are there with amazing credentials and obviously a lot of support behind them. What about her sister? I mean, you occasionally do

hear Susie Abrams' name in these conversations. She would also be, I think, a mold breaking, right? Totally different background. She's going to be the governor of Georgia. Exactly. She's obviously busy. She's announced she's running again for governor. So maybe the answer is she just wouldn't be interested and so no one is talking to her about it. Whereas Sherrilyn Ifill has announced she is stepping down from her position. Yeah.

She's got some time on her hands. Well, she does. So perfect timing, right? Maybe Justice Breyer saw – Maybe that's what led to it. I mean, the LDS. Sherrilyn's open, right? I'm going to send a signal, Joe, right? Like, I'm stepping down, she's stepping down. You get it? You get it, buddy?

I would love if Justice Breyer became an intern at LDF now in his retirement. No, he's going to become a co-host on Strict Scrutiny. If that doesn't work out, I think like a swap would be amazing. We're going to have a trial period and see how it goes. Like a month probation. Lots of people have been talking about what this means for black women. And, yeah, I think there's lots you could say about that. I think Joe Biden should be commended because one of the reasons why the sort of potential shortlist of Black women who could be nominated to this position is relatively spare is because Black women have not always been nominated to

the federal courts. You know, they're just few to choose from. And Ronald Reagan faced the same problem when he was looking for a woman justice in the first year of his term. And he settled on Sandra Day O'Connor, who was an intermediate state court judge in Arizona because there weren't a lot of Republican women on the federal bench. Same kind of thing here, but Joe Biden has really turned that around. So in the future, I think the stock, the bench, as it were, of potential justices is much more robust than it is right now. But that by itself is amazing. But what I am especially excited for is the opportunity for there to be another Black perspective on the court

besides Clarence Thomas. And I'm, whoever this person is, I cannot wait for her to go toe-to-toe with him on some of these issues. And if Breyer steps down before the term is completed, we don't know what the terms of this are. We haven't seen his letter. But if Breyer steps down before the term is completed, we don't know what the terms of this are. We haven't seen his letter. But if it is the case, the new justice joins the court before the term is over, we may actually get the new justice perhaps involved in some of these

really hot button cases. What if they go back and decide to rehear Dobbs? They've done that before. Think about Brown versus Board of Education. Sure. I don't think she'd participate in anything they'd already done. No, but maybe they'd go back. Maybe they could go back. One case I definitely am looking forward to having our first Black woman justice participate in is the next term decision about the legality of considering race and admissions policies, because that is an area where Justice Thomas has staked out a very clear position about how affirmative action is the moral equivalent of, you know, Jim Crow era segregation, and where I think it would be really valuable to have, you know, a black woman voicing like a different

perspective about, you know, the permissible uses of race and the meaning of affirmative action policies. I think it'll also be it's,, I think both like symbolically and substantively really meaningful that the liberal block on the court is going to be three women, two women of color. And that Justice of the Minority will be the senior most. And that's the resonance of that, especially if they speak with one voice, it's, you know, it's going to be women's voices on issues of everything from reproductive choice and access and contraceptive care and, you know, racial justice questions and access to voting and the range of issues, you know, guns, obviously affirmative action we're talking about, but environmental regulation, just the range of issues on which these three would probably be alone is vast. And I think it's meaningful that it would be women channeling the positions that oppose the sixth justice super majority. It is an historic appointment, surely. But I think you're exactly right, Kate,

the dynamics of the court will shift in a really interesting way. I'm not just sort of dismantling the monolith of Justice Thomas as the arbiter of black thought, but then also the sort of diversity of women's experiences contained within the liberal wing. Yeah. Maybe we can coordinate a girl strip with them some summer. Just saying gorgeous ladies of strict scrutiny, gorgeous ladies of the Supreme Court, forced birth advocates not welcome. And it'll be amazing. It will be amazing. Regé-Jean can come too. We will record. Melody will

edit out anything not for public consumption. I mean, justices, please join us. Stephen Breyer, you are an official gorgeous lady for this purpose. You too can come on the trip. Exactly. He did his ally workshop. He did. I've seen the light. So we

recommended that Justice Breyer participate in an ally workshop when he was cutting off Justice Sotomayor and Justice Kagan and some of the questionings, including in Dobbs. But again, he learned, he updated. He's welcome on the retreat. He's welcome on the pod. Love it. When you do the work, you get the benefits. And he shows that. Like he's going to benefit from this. Exactly. He's done the work.

He's been selfless. And we applaud him. Your podcasting chair is open, Stephen G. Breyer, whenever you should choose to claim it. Exactly. Did we just do like a happy and uplifting emergency pod? I don't know. It's so weird. It's so weird.

It's so weird. Do we want to go around and say some like favorite Justice Breyer moments or favorite Justice Breyer opinions? I mean, just in the spirit of like keeping things positive and let's savor the moment. Let's savor the moment. I mentioned his Heller dissent, which I really like. He also, look, in whole health. That was mine. Versus Heller.

Oh, sorry. I stole that one. No, you can steal health. That was mine. Versus Heller. Oh, sorry. I stole that one. No, you can steal it. Go for it. I'm going to pick something different. Go. Yeah. It was a solid.

He kept it short and tight and actually really articulated a test that was a much better test than the Casey test for its short time on the planet. It was great law. For one brief shining moment, it was Camelot. Yeah. So those, I moment, it was Camelot. Yeah. So those, I think, are my picks. My favorite is not necessarily an opinion because I would have picked Whole Woman's Health as my favorite as well. But I love the energy that he brought when he would just go out in public and talk to schoolchildren.

Like he did that Zoom with the students at the United Nations International School in New York. And, you know, he had that like psychedelic Supreme Court background behind him, like someone had showed him how to use a virtual background. But then also like the camera was going up his nose. Like I love that for him. Like, you know, he's a Zoom aficionado, but not quite getting it right. Always willing to go there. And again, to sort of the public information aspect of his justiceship was really, really

welcome. So I will miss him, but I really appreciate the service that he has done. I would like to say three things. And I feel like in later episodes when we cover more of the confirmation hearings and whatnot, I will share a little bit more personal anecdotes from my time clerking about like why I really just came to adore Justice Breyer, which is part of what made the last 13 months so unpleasant, is he was just exceptionally kind. And he tried to get to know my name, but like failed to do so. He just like wasn't really good at, you know, learning names. And so he called me the friendly. I was

the friendly clerk. And he would, you know, refer to he And so he called me the friendly. I was the friendly clerk. And he would, you know, refer to he would ask his other clerks, like, what does that say about your co clerks? Where's the friendly clerk? Or like, anyways, she said nothing. Anyways, but favorite Justice Breyer moments and arguments or opinions. You mentioned the opinion in Whole Woman's Health versus Hellerstedt. I wanted to mention a moment from the argument in Whole Woman's Health versus Hellerstedt, which is I think there was a moment where Justice Breyer may have really won the case and convinced Justice Kennedy to, for the first time, vote to invalidate an abortion

restriction. And that is where Justice Breyer asked the then Solicitor General of Texas to say, I want you to give me one example, one example of any woman who would be benefited from this abortion restriction. And he just stayed on him and got the Solicitor General of Texas to admit that there were none. There were no examples anywhere in the United States of anyone who would benefit from this regulation. And I really think that that could have possibly influenced the outcome in that case, because he basically got Texas to concede there were no health benefits to this abortion restriction at all.

Favorite opinions, just quickly note too, his dissent in FDA versus Brown and Williamson. So that was a case in which the Supreme Court kind of launched this idea of the major questions doctrine that really limits agencies' ability to address novel problems. And Justice Breyer saw the problems with that. He saw the writing on the wall, and he wrote a really good dissent in that case. United States, which began the court's efforts to trim Congress's authority to regulate under the Commerce Clause that almost ended in catastrophe with the court almost blowing up the Affordable Care Act. So again, Justice Breyer, our fellow Cassandra, welcome back to the fold. Well, it's worth noting a lot of his greatest hits are going to be dissents because he was the junior justice for the longest time and really got a lot of the dregs of the opinions over the years. So again, it sort of amplifies why this is such a menschy move, because he is the senior

justice right now. And this would be the moment if the liberal wing ever wins anything where he would get to choose, but he's getting better opinions. And so this is a particularly bittersweet time to depart. But we appreciate you, Steve. The service is incalculable, and you will be rewarded on strict scrutiny and elsewhere. And elsewhere. All right. This feels so good. It's weird. It's so weird. I feel great. Again, Justice Breyer took one for the team in order to gift this to everyone else. So thank you to Stephen G. Breyer. Everyone, raise their glass to Stephen G. Breyer. Thanks also to our producer, Melody Rowell, for putting together another emergency episode. Thanks to Eddie Cooper for making our music.

And thanks to all of you for listening.