Today, Explained - Breyer to Reteyer

Episode Date: January 27, 2022

Vox’s Ian Millhiser says American politics shifted during Justice Stephen Breyer’s career, until he no longer had a place in them. This episode was produced by Amina Al-Sadi and Victoria Chamberlin, edited by Matt Collette, engineered by Paul Mounsey, fact-checked by Laura Bullard and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. Ian Millhiser, Senior Correspondent at Vox covering the Supreme Court. Why are we going to talk about ice cream today? I'm very confused. Sorry.

As we've been reporting, Supreme Court Justice Stephen Breyer is retiring at the end of the court's term in June. Justice Breyer is retiring from the Supreme Court. What does it mean? The most immediate significance is what it does not mean. It does not mean that Breyer is going to stick around until he could potentially be replaced by a Republican president. And then we would have a 7-2 Supreme Court with the Republican advantage. But it also means that President Biden gets to nominate his first Supreme Court nominee.

I will select a nominee worthy of Justice Breyer's legacy of excellence and decency. It means that this seat will continue to be held by, you know, someone reasonably liberal who will vote in the way that Breyer's part that the sort of bipartisan dealmaking that he has historically been very successful at as a justice is not something that his colleagues are interested in anymore. Okay, hot take. Let's hold that thought for a minute and talk about what comes next for the court. I will listen carefully to all the advice I'm given, and I'll study the records and former cases carefully. I'll meet with the potential nominees. And it's my intention, my intention to announce my decision before the end of February. So one piece of good news for for Biden is that it only takes 50 votes plus the vice president to confirm a Supreme Court nominee.

So he doesn't need any Republican votes in order to get this done. Now, obviously, Joe Manchin and Kyrsten Sinema have been a frequent thorn in Biden's side, but not really on nominations. I mean, you know, Manchin blocked Neera Tanden's nomination at the beginning of the presidency. I think there was one other nominee to a banking job who got blocked. But for the most part, Biden's nominees and especially his judicial nominees have sailed through without too much trouble from anyone in the Democratic caucus. So, you know, a Supreme Court nominee is obviously a bigger deal than a lower court judge. But Manchin and Sinema so far, like all of the Democrats have hung together on nominations. And there's also a

handful of Republicans, Lisa Murkowski, Susan Collins, maybe Mitt Romney. But you know what you call someone who gets exactly 50 votes plus the vice president for their confirmation vote? vote. You call them your honor. Nailed it. This is the Democrats' first real chance. I'm still laughing. This is the Democrats' first real crack at a Supreme Court appointment in over a decade. Who is on the shortlist? So Biden has promised to name a Black woman to the Supreme Court. His nominee, if she is confirmed, will be the first African-American woman ever to sit on the Supreme Court. I've made no decision except one. The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court.

It's long overdue in my view. When he came into office, that was potentially difficult to keep. And the reason why is because black women are massively underrepresented on the federal bench. When Biden took office, there were only five black women on the federal courts of appeals. And normally Supreme Court nominees are sitting federal appeals judges. And the youngest of those women was I think she's now 69. So like nice. He didn't have much of a pull there. Since then, he has doubled the number of black women on the federal appellate bench. There are five women right now who are Biden appointees, who are black women who sit on the federal appellate court.

There's also a woman, Leandra Kruger, who's relatively young. I believe she's in her mid 40s, who sits on the California Supreme Court. She's very well regarded. There were rumors that Biden wanted to make her solicitor general and that she turned him down. So, you know, Biden has already thought about her potentially for other roles. And so between the women that he's already appointed, plus Justice Kruger, that's a pretty good list of very qualified candidates. Now, of these candidates, I think that the two who everyone has talked about, one is Kruger, and then the overwhelming frontrunner is a woman named Katonji Brown Jackson. I have had

the great privilege of having been invited to come before this committee twice before for confirmation. So I know that I've already taken up a great deal of your collective time, and I am both humbled and very grateful to be here once again. She sits on the D.C. Circuit now. Often called the second highest court in the land. Very, very well regarded judge. Very, very smart. I think the fact that the Senate confirmed her first tells you something. A lot of people think it's going to be Katonji Brown Jackson. His vice president has a law degree. No chance there. We did it, Joe. I mean, you know, you can never say never. But why would you take out your vice president? I mean, among other things, if Vice President Harris becomes Justice Harris, then you have to confirm a new vice president. And confirming a new Kamala Harris, she's not a judge. She was a state attorney general for a while.

But like she just has a different skill set than the sort of people who are normally nominated for the Supreme Court. Now, that said, I mean, if you go back to like the Roosevelt administration, you know, there is a history or the Truman administration. There is a history of politicians being confirmed to the Supreme Court. So if Biden wanted to tap into the same energy that put Senator Hugo Black on the Supreme Court back in the Roosevelt administration, maybe Kamala Harris looks pretty good, but I just think it's unlikely. Okay. But no matter who he appoints, unless they turn out to be, you know, a conservative hiding inside the shell of a liberal, they're not really going to shift any of the power balance on the Supreme Court. Yeah, I think that's right. I mean, it's a six to three Supreme Court. Republicans are in the driver's seat. And if Biden successfully replaces Breyer, it'll still be a six to three Supreme Court. I mean, that said, nominees serve for life and it can matter a lot if the balance on the court changes over the long term. stake a flag for liberalism and like is going to be writing in dissent for a really long time and could try to argue in dissent for doing something different, in which case someone like Jackson, I think, looks pretty good. Or does he want someone who's more likely to be able to

broker deals with the Republican nominees? And in that case, someone like Kruger might look better. Will anyone miss Justice Stephen Breyer? Yes. I mean, Breyer, I think a lot of people will miss him. But most of the work that he did on the Supreme Court was fairly invisible. It wasn't his name on the opinion, but he was brokering the deal that saved some really important law. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family, And Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter.

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. We did it. We did it, Joe. Ian, before we hit the break, you said that a lot of the work Breyer did on the Supreme Court was invisible. I want to better understand that. But before we jump into the invisibility thing, who was Stephen Breyer before he was Justice Stephen Breyer? Harvard Law professor who went on to become Senator Edward Kennedy's chief counsel when Kennedy was chair of the Judiciary Committee.

And he was extraordinarily successful in that role. Judge Breyer, when he was chief counsel, Breyer had the confidence of Democrats, Senator Kennedy, Senator Biden, Senator Heflin. He was very close with his Republican counterpart. He was very good at maintaining relationships with the Republican senators. His children would play with Senator Strom Thurmond's children, the like arch former segregationist Republican senator. And I think that the president was right when he announced the appointment, the nomination.

He commented on Judge Breyer's political skills in having the support of everybody from Senator Kennedy to Senator Hatch. Like, he was just very good at brokering those sorts of bipartisan deals. He was also there at a time when there was a neoliberal consensus that no longer exists. One of the big projects he worked on when he was on the Senate Judiciary Committee was airline deregulation. But Breyer came of age at a time when bipartisan dealmaking was still not just possible, but very common. The best I can do in an opinion is to give my reasons. And if it's a good opinion, those really are my reasons.

And then others will come along and say, oh, I can't believe he thinks that. OK, that's their right. That's the purpose of an opinion. And he was very, very good at striking those sorts of deals. He was very good at it when he was working in the Senate. He was very good at it in the Supreme Court. And sadly, I mean, I think one explanation for why he might be retiring right now is that the very skillset that he had,

this ability to broker those sorts of bipartisan deals, I think is now largely obsolete. How did Breyer get on the Supreme Court? Who appointed him? So Breyer was appointed to the First Circuit, to a lower court in 1980, when President Carter was a lame duck. This goes to show how beloved he was across the aisle. All that the Republicans had to do was like wait a few weeks and Ronald Reagan could have filled that seat.

But Republicans like Justice Breyer so much that they said, no, we'll let him have it. We like this guy. Breyer sat on the First Circuit for about 14 years. And then when a vacancy opened, President Clinton went to Orrin Hatch, a very conservative Republican senator, and said, so who do you think I should nominate? And Hatch, you know, again, this was a different era where you could have good faith conversations. Hatch basically said, look, like, you're not going to nominate the person that I want. I know you're going to nominate a liberal. The two people you should look at are Ruth Bader Ginsburg and Stephen Breyer. And who did Clinton wind up putting on the Supreme Court? Ruth Bader Ginsburg and Stephen Breyer. I asked the Senate to consider and to promptly confirm the nomination of Judge Stephen Breyer as the 108th justice of the Supreme Court. Breyer owes this lofty career he's had to this era where there was a certain good faith and bipartisanship in government that I think most people who only know today's politics wouldn't recognize and might not believe was real.

The case for Judge Breyer's confirmation is clear and compelling. His sheer excellence, his broad understanding of the law, his deep respect for the role of the courts in our life and in protecting our individual rights, and his gift as a consensus builder. So tell me how he made himself invisible once he got to the Supreme Court. Well, it's not so much that he made himself invisible. It's just that that same deal-making skill that served him so well in the Senate also served him very well in the Supreme Court. So there was a case called

Fisher v. University of Texas. This was a case that everyone thought was going to kill affirmative action forever in university admissions. There are several thousand admissions officers in the United States, several thousand universities. And what is it we're going to say here that wasn't already said than Grutter, that isn't going to take hundreds or thousands of these people and have federal judges dictating the policy of admission of all these universities? You see why I'm looking for some certainty. And what happened was Justice Kennedy initially staked out a pretty hard-line position against affirmative action. Justice Sotomayor wrote a barn burner dissent about the importance of affirmative action. And Breyer was able to broker a deal between them. Until maybe a few months from now when it goes before the Supreme

Court again. Yeah, until maybe, yeah, now there's a new case. The conservative majority Supreme Court has agreed to hear a challenge to the consideration of race and college admissions. The lawsuits accuse Harvard University and the University of North Carolina of discriminating against Asian American applicants in an effort to promote diversity. And there's a new majority on the Supreme Court. So, like, this deal isn't likely to last very long. But, you know, it kept it alive for several more years. When Chief Justice Roberts started to get cold feet about striking down huge swaths of the Affordable Care Act, he went to Breyer and Justice Elena Kagan and tried to broker a deal with them. And they managed to reach a deal which weakened the Medicaid expansion. You know, it did do some damage to the Affordable Care Act, but it kept most of the law alive. Thanks, Obama. He was quietly working within to try to find bipartisan ways to preserve as much as what he cared about as possible.

When Anthony Kennedy, who was a more moderate conservative, was on the court, he was able to work with Anthony Kennedy. When Justice Roberts, who's at least more moderate than the current court is, he was able to work with Chief Justice Roberts. I suspect that at least part of his calculation as to why he's retiring now, I don't think anyone can work with the court's current majority. OK, so he's a broker. But is there a case that gives us a sense of his actual judicial philosophy? One of the cases that I think he will be remembered for is Whole Woman's Health Fee Hellerstedt, which basically kept Roe v. Wade alive for another five or six years.

I mean, there's a big case in front of the court right now that seems likely to end the constitutional right to an abortion. A Mississippi abortion case was heard at the Supreme Court of the United States. What happened? Based on what I heard today in this Mississippi case, I think the most likely outcome is that Roe v. Wade is doomed. But the last time there was a big fight over abortion, this was in 2016, it was Breyer who wound up writing the opinion. And what's interesting about his whole women's health opinion is here is this like hugely politically charged,

very consequential thing that everyone is fighting over. And he wrote the most technocratic opinion about abortion that you'll ever read. The surgical center provision requires, in addition, that a facility maintain, for example, personnel trained in cardiac life support, an operating room with a clear floor area of at least 240 square feet, a post-operative patient holding room, a post-operative recovery suite, a one-way traffic pattern, and they must meet special surgically related standards concerning ventilation, air conditioning, piping, plumbing, and others. I think that was just indicative of his approach to the law. I mean,

he was he was a technocrat. He believed that the way that you tried to find the answer to a difficult question is that you studied it. You understood the policy really well. You understood the nuances of it really well. And you approached it from that angle. And, you know, that is not the approach that many of the more ideological judges take. But I think that that was, you know that is not the approach that many of the more ideological judges take but i think that that was you know the approach that briar often took in his opinions i mean you could say that this idea that the court remain apolitical that i just call balls and strikes as roberts likes to believe is sort of being flushed down the toilet as nomination processes become more political. And was it not Breyer who famously flushed a toilet during oral

arguments in 2020? I mean, there's a lot of speculation. What he has said is that when the subject matter of the call ranges to this topic. Then the call is transformed. I think Breyer was probably responsible for Toilet Ghazi. If it's yellow, let it mellow. If you're on a call with Ruth Bader, flush it later. But I just think that both parties now have a much more clearly defined sense of what they want out of the Supreme Court than they did when Breyer got there 28 years ago. And when he was talking about not politicizing the court and, you know, there was a lot of consternation last year when he was suggesting that he wasn't going to retire under Biden because he didn't want his retirement to look political. Most people's reactions,

certainly my reactions, your court is not this apolitical body that you might have thought it was in 1994. It's become something else. Breyers had a very successful career and a very successful tenure on the Supreme Court. I think it's time for someone younger who better understands the politics of the moment to sit in that seat. I'm talking to the students now. I say, I want you to pick just this up. It's an experiment that's still going on. And I'll tell you something. You know who will see whether that experiment works? It's you, my friend. It's you, Mr. High School student. It's you, Mr. College student. It's you, Mr. Law School student.

It's us, but it's you. It's that next generation. And the one after that. My grandchildren and their children. They'll determine whether the experiment still works. And of course, I am an optimist and I'm Paul Mounsey. Laura Bullard checked our facts. I'm Sean Ramos for M. This is Today Explained. Thank you.