Tangle - Stephen Breyer retires.

Episode Date: January 27, 2022

To subscribe and receive tomorrow's member's only post, go to https://www.readtangle.com/membership/Stephen G. Breyer. Yesterday, news broke that the senior member of the Supreme Court's three-member liberal wing will retire. Breyer, who is 83, was appointed in 1994 by Bill Clinton and is the oldest member of the court. When Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, many progressives began urging Breyer to step down to ensure President Joe Biden would be able to select his replacement. Breyer's most consequential decisions on the bench involved holding up the Affordable Care Act, backing pro-choice rulings, and supporting the 2015 ruling to legalize same-sex marriage.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I am your host, Isaac Saul, and on today's episode, we are going to be talking about the Supreme Court, and specifically Stephen Breyer, the justice who just retired yesterday, and what it means for the future of the court. Before we jump in, I want to give a quick plug for our members subscribers only edition that's going to be coming out in the

newsletter tomorrow. I'm going to be revisiting some of my revisitation of critical race theory and the debate around it and some of what's happening in schools across the country right now. You might remember early on I wrote about this issue, and then I did a follow-up piece after a lot of reader feedback and some more public debate on it, and now I'm going to follow up to that follow-up piece. I think it's pretty important what's happening right now, and I think some of my initial instincts ended up being right, and so I want to address it and sort of see what happens. So if you want that, you do have to be a subscriber, which means you go to readtangle.com backslash membership and become a subscriber

to get Friday editions. All right, first up, we're going to start with some quick hits for the day. Number one, the Justice Department filed charges against the man accused of selling a gun to the suspect who held hostages in a Texas synagogue. Number two, 14.5 million people enrolled in the Affordable Care Act in 2021. That's two million more than was expected. more than was expected. Number three, a report on a series of parties held by British Prime Minister Boris Johnson in violation of COVID-19 rules is expected to be released as early as today. Number four, new COVID-19 cases in the U.S. are now dropping, a sign that Omicron is finally burning out. However, deaths continue to rise and are now averaging more than 2,000 a day.

Number five, the economy grew at 5.7% in 2021, the fastest one-year clip since 1984. Some breaking news. A leading member of the Supreme Court is retiring. Let's get straight to CNN's Jessica Snyder. Jess, huge news. Supreme Court Justice Stephen Breyer is retiring, and this is according to NBC News first reporting this. And of course, we know that that gives President Joe Biden a crucial opportunity to replace the liberal justice. Now, Emily, President Biden is expected to make a formal announcement at the White House later this week. Justice Breyer has been on the high court for 27 years. Yesterday, news broke that the senior member of the Supreme Court's three-member liberal wing will retire. Breyer, who's 83,

was appointed in 1994 by Bill Clinton and is the oldest member of the court. When Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, many progressives began urging Breyer to step down to ensure that President Biden was able to select his replacement. Breyer's most consequential decisions on the bench involved holding up the Affordable Care Act, backing pro-choice rulings, and supporting the 2015 ruling to legalize same-sex marriage. While news broke of Breyer's decision, the justice himself had still not acknowledged it, and the White House was refusing to comment on a potential replacement. Justices are appointed for life, and Breyer is expected to serve out the remainder of

his term, which would end in June or July. Given the 6-3 conservative majority on the court, a replacement would not change the ideological makeup. Throughout his time on the bench, Breyer has been considered a moderate liberal. With the Senate split 50-50, questions are already rising about who Biden might nominate and who could earn the support of Democrats like Senators Joe Manchin and Kyrsten Sinema, who have proved themselves willing to buck the party. If Biden were to wait until the midterms, it's possible Democrats could lose their Senate majority, which means they will almost certainly move with pace to replace him. During his campaign for president, Biden promised to appoint a black woman to the Supreme Court, which has many people

speculating he will tap Judge Katanja Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit, who graduated from Harvard Law School and served as a law clerk to Justice Breyer, and Justice Leandra R. Kruger of the California Supreme Court, who graduated from Yale Law School and served as a law clerk to Justice John Paul Stevens. That is according to the New York Times. Breyer's retirement also marks the first result of my post in December when I published 19 predictions about the future of politics. Number 12 was Stephen Breyer will retire from the Supreme Court before Biden leaves office. My confidence rating on that prediction was an 8 out of 10.

I'll do my best to continue to track these predictions as they unfold, but I am happy to start one for one. Below, we're going to take a look at some reactions to the news and then my take. First up, we'll start with what the left is saying. The left is relieved that Breyer is retiring and urges Biden to keep his promise. Some hope Breyer's replacement is more progressive than he was. Others say it is important that the bench have more representation. Matt Ford said the retirement was a relief and a chance for progress. Breyer's departure will not significantly alter the court's ideological balance, Ford said. With six conservative justices now on the bench, whoever Biden nominates will

almost certainly be part of a three-justice liberal minority for the next 15 to 20 years. At the same time, his replacement with a much younger justice will help ensure that the court wouldn't drift even further to the right due to a vacancy arising during a Republican presidency, as it did when Ruth Bader Ginsburg died in 2020 during Donald Trump's presidency. Still, Biden's pick will make history in other ways. On the campaign trail during the 2020 election, Biden pledged to appoint the first Black woman to the Supreme Court, a move aimed at shoring up his support among Black voters in South Carolina, which paid off, Ford wrote. Biden, who appointed more judges in his first year than any president since JFK, has already made strides in increasing the diversity of the lower federal courts during his first year in office. As of this

month, he has already nominated eight Black women to serve on the Federal Circuit Courts of Appeal. David Sirota said another Breyer on the court would be disastrous for the left. Though most of the Supreme Court discourse revolves around hot-button social issues, the high court is first and foremost big business's cannon aimed squarely at the American worker and at the livable ecosystem that supports human life, Sirota said. On one level, Breyer reportedly retiring is welcome news because it provides a rare opportunity for lawmakers other than Republicans to put someone on the court who doesn't resemble a villain from The Handmaid's Tale. But with corporate America's stranglehold on policy, from health care to labor to climate, it's not enough to merely get an appointee who

checks some important demographic boxes and isn't a religious zealot. With so much of the court's day-to-day work focused on corporate cases rather than on social policy, the moment calls not merely for some younger version of Breyer who has pretended the court is not inherently rigged in favor of corporate power, even though it quite obviously is, Sirota wrote. Instead, this moment begs for a jurist whose life experience and record shows a commitment to prioritizing American workers and the environment and breaking with the most powerful lobbying group in America, the U.S. Chamber of Commerce. In the New Republic, Maya Wiley said Biden needs to keep his promise. First, the choice of nomination should be all

about the qualifications of the candidate. Black women on the federal bench are there because they are qualified, period, she wrote. In fact, it's damn hard to get there, so we have to understand just how qualified they must be to overcome the challenges and nominations for such prestigious and coveted positions. It's not just about political payback. It's about diversity of experience on the bench to ensure a robust set of perspectives and debate. And it matters. Remember that it was Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court, a Ronald Reagan appointee, who penned the 1982 opinion in Hogan v. Mississippi, which struck down that state's sex-segregated public nursing schools. And it was Justice Thurgood Marshall, the civil rights icon

and first black justice, whom O'Connor credited with educating her on the importance of the black experience, leading her to pen her 2003 opinion upholding the University of Michigan's Affirmative Action Admissions Program, Wiley added. We need the experience of people who look like this country, and that has been sorely lacking on the bench. All right, so that's it for what the left is saying. That brings us to the right's take. The right said Biden made a mistake by guaranteeing he'd nominate a black woman. They hope Biden's nominee is not a far-left extremist, and some urge Republicans to respect the process.

The National Review wished Breyer well and said they wished they could be equally cheery about his potential replacement. Biden has unwisely unlimited his options to preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman, the board wrote. In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law. Unlike Donald Trump, Biden did not run on a named list of potential candidates, so he will then have to sell his nominee to the public, they added. That nominee is almost certain to be a progressive who treats the written constitution with contempt. Even if Democrats remain united

enough to provide the votes to confirm such a nominee, Republicans should extract a political cost from the midterm Senate races for doing so. The last three cycles of Senate elections have shown that fidelity to the Constitution is a winning political issue for Senate Republicans. So let us have another national argument about whether the Supreme Court should follow the written Constitution or not. There is no reason to shy away from the fight. In the Wall Street Journal, Jonathan Turley said Biden's criteria was unnecessary. With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions

and unlawful for businesses, Turley wrote. It also means Mr. Biden's shortlist will be much shorter than usual. The three leading candidates are Justice Leandra Kruger of the California Supreme Court, U.S. Circuit Judge Katanja Brown Jackson, and U.S. District Judge Michelle Childs. These are all worthy candidates who could have been considered for any vacancy without declaring that they were qualified by virtue of filling a quota, an unfortunate implication for the ultimate nominee. Mr. Biden's use of such threshold exclusions is neither unlawful nor judicially reviewable, he wrote, yet it's also unnecessary. Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates

and expressly pledged to apply what is by definition a discriminatory threshold criterion. It was a pledge meant to blunt criticism from other Democrats, including Senator Kamala Harris, that he had opposed school busing and affirmative action early in his career. In Fox News, Greg Jarrett said the timing made sense. If Breyer was going to step away, it had to be soon, Jarrett wrote. He is a highly intelligent man and a realist. He well knows there is a very good chance that in the coming midterm elections this year, which confirms Supreme Court justices, the upper body of Congress currently resides in a tie of 50-50 with the vice president casting the deciding vote as president of the Senate. When the last three conservative-oriented judges were nominated by President

Trump, many Republicans insisted that the central question should always be whether a candidate is competent and qualified, Jarrett said. Thus, as long as those two conditions are met by Biden in this selection process of briar's replacement, Republican senators would be wise to abide by their own stated standards and not oppose the nominee. They should take the high road and decline to retaliate in kind. There are several highly qualified people to be on the so-called short list compiled by the White House. All right, so that is it for the left and the right's take, which brings us to my take. Well, I can almost hear the liberals exhaling through my computer right now. Seriously, Breyer's previous ambiguity about his plans had a lot of folks on the left uneasy,

and who could blame them? Despite her poor health and age, Ruth Bader Ginsburg stuck it out on the court until her death, something many on the left feared would happen. The result was a Supreme Court bonanza for President Trump, unlike anything we'd seen in decades, and a conservative majority court that will be enshrined for at least the next couple of decades. Breyer's legacy is often described as one of practicality. I'm not a student of his time on the bench, but it appears there's

enough consensus there I'd be silly to doubt it. What I loved and appreciated more about him was his reputation for listening. Neil Katyal, who clerked for Breyer, underscored this in a beautiful tribute to him that resonated strongly with me. He wrote that Breyer had a constitutional humility and didn't pretend to know the answer to every question. We now live in a world of know-it-alls catalyzed by a social media engine that brings these forces together, he wrote. The centrifuge extracts the tribal purity, where if you believe one thing, you must necessarily believe ten others, and those ten lead you down another ten, and so on. Instead of learning from those outside this closed universe, you have to stay in it or face attack. And within it, because

everyone is egging each other on, facts start to lose their salience. Instead, passion and purity become the new currency. Enter Breyer. His life's work stands as a counterpoint to this, that one can hold strong views and yet retain nuance and the capacity to listen and learn from one another. Biden's pledge to pick a black woman to replace Breyer is predictably drawing some criticism. It doesn't really bother me, though. Biden's critical base was always black voters, and he wanted to make a promise that he would bring diversity and representation to government spaces that lacked it. There are a half dozen supremely qualified black women for the court, and he won't have a hard time finding a replacement. My biggest regret is for the nominee,

whoever she will be, that will have to face inevitable questions about her qualifications because her nomination was borne out from a short list of race and gender. Regardless, I wouldn't expect too many fireworks. Republicans abolished the filibuster on Supreme Court justices Stonewall and Merrick Garland for eight months and replaced them with Justice Neil Gorsuch, then confirmed Amy Coney Barrett in a matter of weeks after the death of Ruth Bader Ginsburg. Their hypocrisy on this matter was well documented, and I doubt they'll do much to stand in the way now.

There's no point. Their majority will be intact, though this obviously sets Democrats up to bring balance back to the court in the future. Most of the nominees Biden is considering are in their 40s or 50s. With any luck, we'll get a nomination process full of some civility and decency. I wouldn't hold your breath, but at least we can hope. All right, that is it for today's main topic that brings us to your questions answered this question comes from josh in torrington connecticut he asked at what point would you consider tucker carlson's rhetoric to have crossed the line into being treasonous he's always gleefully peddled dangerous misinformation but it's becoming a mouthpiece to foreign actors who are expertly So, Josh, I appreciate the question.

Treasonous is really a big word, though. Involving or guilty of a crime of betraying one's country, a crime that is punishable by death or a minimum of five years in prison, I don't think Tucker Carlson is treasonous. In fact, there are plenty of moments where I've watched Carlson's show and I find myself nodding along. These nods usually turn into head shakes and disappointment when he brings his fiery monologues home, typically in a way meant to evoke fear and hatred toward fellow Americans, but I think he's often right about his anti-interventionism and the anger some Americans are feeling about how

a corporate political class have left them behind. As I said on Tuesday, the thing about Tucker I loathe is the sleight of hand he plays in order to bring people into his position. I don't think he's an honest intellectual. He's one of the worst of the partisans out there, and he thrives on precisely the model of sensationalism and television news that I despise, which is part of why I started Tangle. He's also got a lengthy track record of saying racist things about foreigners and seems to be keen on becoming the face of white grievance. I don't think he's someone to look up to, even if his commentary occasionally resonates with me. But treason? No. I think Carlson is loyal to the United States and the version of the U.S. he wants to see.

I think he believes every night that he's acting in a way that will help America and Americans, particularly when he insists on not getting involved in other nations' battles. I just think his logic to get there can often be misleading and even sometimes dangerous. All right, next up is a story that matters. All right, next up is a story that matters. This one is from Fox News, which is reporting a video that purports to show many adult male single migrants who are being transported and released across the U.S. The video, shot on August 13th, 2021, is animating criticism of Biden's immigration debate in conservative circles, though it has gotten little attention in some major media outlets. conservative circles, though it has gotten little attention in some major media outlets. The footage was obtained via Freedom of Information Act requests by former Westchester County Executive Rob Astorino and includes interviews with contractors explaining an effort to keep

it quiet that they are helping transport migrants from border states to Westchester, New York. The video is currently on the homepages of Fox News, the New York Post, and other popular right-leaning news outlets driving a huge amount of social media engagement and calls for Biden to reform his immigration policies. You can find a link to that story in today's newsletter. All right, that brings us to our numbers section. These are all about the Supreme Court. section. These are all about the Supreme Court. 285 is the number of days until the 2022 midterm elections. 70 is the average number of days between a vacated Supreme Court seat and a nomination for a replacement. 42 is the average number of days between a vacated Supreme Court seat and a nomination for a replacement before the blocking of Merrick Garland's nomination.

27 is the number of days it took Amy Coney Barrett to be nominated and confirmed after the death of Ruth Bader Ginsburg. 99 is the number of days it took from Clarence Thomas' nomination to his confirmation, the longest in recent U.S. history. All right, last but not least here, have a nice day story. After the Kansas City Chiefs defeated the Buffalo Bills in an NFL game, their fans wanted to honor a miraculous 13-second drive with $13 donations to star quarterback Patrick Mahomes' charity. But as the idea began percolating

online, Chiefs fans got wind of a tradition that Buffalo fans participate in, which is donating to opposing teams' charities of choice. So instead of donating to their quarterback's charity, Chiefs fans began dumping money into a Buffalo hospital. $255,000 of money as of Wednesday afternoon. ESPN has the awesome story today, and there's a link to it in our newsletter. All right, everybody, that is it for today's podcast. As always, if you want to support our work, you can go to the episode description and do that. Please remember that again tomorrow, we are releasing an exclusive members only premium Friday edition

right to your inbox. They can only get if you subscribe to Tangle www.readtangle.com backslash membership. There's a link to it in today's episode description. So, you know, go click it. Otherwise, we'll see you Monday. Peace. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn and music for the podcast was produced by Diet 75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com. Bye.