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--:-- Sean Rameswaram: Ian Millhiser, senior correspondent at Vox covering the Supreme Court.
--:-- Sean Rameswaram: Why are we going to talk about ice cream today? I'm very confused.
--:-- Sean Rameswaram: Sorry.
--:-- Sean Rameswaram: As we've been reporting, Supreme Court Justice Stephen Breyer is retiring at the end of the court's term in June.
--:-- Sean Rameswaram: Justice Breyer is retiring from the Supreme Court.
--:-- Sean Rameswaram: What does it mean?
--:-- Ian Millhiser: The most immediate significance is what it does not mean.
--:-- Ian Millhiser: It does not mean that Breyer is going to stick around until he could potentially be replaced by a Republican president.
--:-- Ian Millhiser: And then we would have a seven to two Supreme Court with the Republican advantage.
--:-- Ian Millhiser: But it also means that President Biden gets to nominate his first Supreme Court nominee.
--:-- Ian Millhiser: I will select a nominee worthy of Justice Breyer's legacy of excellence and decency.
--:-- Ian Millhiser: It means that this seat will continue to be held by, you know, someone reasonably liberal who will vote in the way that Breyer has historically voted.
--:-- Ian Millhiser: I think it also may represent a recognition on 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.
--:-- Sean Rameswaram: OK, hot take.
--:-- Sean Rameswaram: Let's hold that thought for a minute and talk about what comes next for the court.
--:-- Ian Millhiser: I will listen carefully to all the advice I'm given and I'll study the records and former cases carefully.
--:-- Ian Millhiser: I'll meet with the potential nominees.
--:-- Ian Millhiser: And it is my intention, my intention to announce my decision before the end of February.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: So he doesn't need any Republican votes in order to get this done.
--:-- Sean Rameswaram: Now, obviously, Joe Manchin and Kyrsten Sinema have been a frequent thorn in Biden's side, but not really on nominations.
--:-- Sean Rameswaram: I mean, you know, Manchin blocked Neera Tanden's nomination at the beginning of the presidency.
--:-- Sean Rameswaram: I think there was one other nominee to a banking job who got blocked.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: So, you know, a Supreme Court nominee is obviously a bigger deal than a lower court judge.
--:-- Sean Rameswaram: But Manchin and Sinema so far, like all of the Democrats have hung together on nominations.
--:-- Sean Rameswaram: And there's also a handful of Republicans, Lisa Murkowski, Susan Collins, maybe Mitt Romney.
--:-- Sean Rameswaram: But you know what you call someone who gets exactly 50 votes plus the vice president for their confirmation vote?
--:-- Sean Rameswaram: You call them your honor.
--:-- Sean Rameswaram: Nailed it.
--:-- Sean Rameswaram: This is the Democrats' first real chance to...
--:-- Sean Rameswaram: I'm still laughing.
--:-- Sean Rameswaram: This is the Democrats' first real crack at a Supreme Court appointment in over a decade.
--:-- Sean Rameswaram: Who is on the shortlist?
--:-- Ian Millhiser: So Biden has promised to name a black woman to the Supreme Court.
--:-- Ian Millhiser: His nominee, if she is confirmed, will be the first African-American woman ever to sit on the Supreme Court.
--:-- Ian Millhiser: I've made no decision except one.
--:-- Ian Millhiser: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity.
--:-- Ian Millhiser: And that person will be the first black woman ever nominated to the United States Supreme Court.
--:-- Sean Rameswaram: It's long overdue in my view.
--:-- Sean Rameswaram: When he came into office, that was potentially difficult to keep.
--:-- Sean Rameswaram: And the reason why is because black women are massively underrepresented on the federal bench.
--:-- Sean Rameswaram: When Biden took office, there were only five black women on the federal courts of appeals.
--:-- Sean Rameswaram: And normally Supreme Court nominees are sitting federal appeals judges.
--:-- Sean Rameswaram: And the youngest of those women was I think she's now 69.
--:-- Sean Rameswaram: So like – Nice.
--:-- Sean Rameswaram: He didn't have much of a pool there.
--:-- Sean Rameswaram: Since then, he has doubled the number of black women on the federal appellate bench.
--:-- Sean Rameswaram: There are five women right now who are Biden appointees who are black women who sit on the federal appellate court.
--:-- Sean Rameswaram: There's also a woman, Leandra Kruger, who's relatively young.
--:-- Sean Rameswaram: I believe she's in her mid-40s, who sits on the California Supreme Court.
--:-- Sean Rameswaram: She's very well regarded.
--:-- Sean Rameswaram: There were rumors that Biden wanted to make her solicitor general.
--:-- Sean Rameswaram: And that she turned him down.
--:-- Sean Rameswaram: So, you know, Biden has already thought about her potentially for other roles.
--:-- Sean Rameswaram: And so between the women that he already appointed plus Justice Kruger that a pretty good list of very qualified candidates
--:-- Ian Millhiser: 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 Ketanji Brown Jackson.
--:-- Ian Millhiser: I have had the great privilege of having been invited to come before this committee twice before for confirmation.
--:-- Ian Millhiser: So I know that I've already taken up a great deal of your collective time.
--:-- Ian Millhiser: And I am both humbled and very grateful to be here once again.
--:-- Sean Rameswaram: His vice president has a law degree.
--:-- Sean Rameswaram: No chance there.
--:-- Sean Rameswaram: We did it, Joe.
--:-- Sean Rameswaram: I mean, you know, you can never say never.
--:-- Sean Rameswaram: But why would you take out your vice president?
--:-- Sean Rameswaram: I mean, among other things, if Vice President Harris becomes Justice Harris, then you have to confirm a new vice president.
--:-- Sean Rameswaram: And confirming a new vice president requires you to get confirmation in both the House and the Senate.
--:-- Sean Rameswaram: Oh, yeah.
--:-- Sean Rameswaram: It's a difficult process.
--:-- Sean Rameswaram: And plus, like Kamala Harris, she's not a judge.
--:-- Sean Rameswaram: She was a state attorney general for a while.
--:-- Sean Rameswaram: But like she just has a different skill set than the sort of people who are normally nominated for the Supreme Court.
--:-- Sean Rameswaram: Now, that said, I mean, if you go back to like the Roosevelt administration, you know, there is a history or the Truman administration.
--:-- Sean Rameswaram: There is a history of politicians being confirmed to the Supreme Court.
--:-- Sean Rameswaram: So if Biden wanted to tap into the same energy that put Senator Hugo Black on on the Supreme Court back in the Roosevelt administration, maybe Kamala Harris looks pretty good.
--:-- Sean Rameswaram: But I just think it's unlikely.
--:-- Sean Rameswaram: OK, 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.
--:-- Sean Rameswaram: Yeah, I think that's right.
--:-- Sean Rameswaram: I mean, it's a six to three Supreme Court.
--:-- Sean Rameswaram: Republicans are in the driver's seat.
--:-- Sean Rameswaram: And if Biden successfully replaces Breyer, it'll still be a six to three Supreme Court.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: And so I think the question that Biden wants to ask at this point is, does he want someone who can 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.
--:-- Sean Rameswaram: Or does he want someone who's more likely to be able to broker deals with the Republican nominees?
--:-- Sean Rameswaram: And in that case, someone like Kruger might look better.
--:-- Sean Rameswaram: Will anyone miss Justice Stephen Breyer?
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: It wasn't his name on the opinion, but he was brokering the deal that saved some really important law.
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--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: But before we jump into the invisibility thing, who was Stephen Breyer before he was Justice Stephen Breyer?
--:-- Sean Rameswaram: He was a Harvard law professor.
--:-- Sean Rameswaram: Who went on to become Senator Edward Kennedy's chief counsel when Kennedy was chair of the Judiciary Committee.
--:-- Sean Rameswaram: And he was extraordinarily successful in that role.
--:-- Sean Rameswaram: Judge Breyer, when he was chief counsel, Breyer, had the confidence of Democrats, Senator Kennedy, Senator Biden, Senator Heflin.
--:-- Sean Rameswaram: He was very close with his Republican counterpart.
--:-- Sean Rameswaram: He was very good at maintaining relationships with the Republican senators.
--:-- Sean Rameswaram: His children would play with Senator Strom Thurmond's children, the, like, arch former segregationist Republican senator.
--:-- Sean Rameswaram: And I think that the president was right when he announced the appointment, the nomination.
--:-- Sean Rameswaram: He commented on Judge Breyer's political skills in having the support of everybody from Senator Kennedy to Senator Hatch.
--:-- Sean Rameswaram: Like he was just very good at brokering those sorts of bipartisan deals.
--:-- Sean Rameswaram: He was also there at a time when there was a neoliberal consensus that no longer exists.
--:-- Sean Rameswaram: One of the big projects he worked on when he was on the Senate Judiciary Committee was airline deregulation.
--:-- Sean Rameswaram: But Breyer came of age at a time when bipartisan deal making was still not just possible but very common.
--:-- Sean Rameswaram: The best I can do in an opinion is to give my reasons.
--:-- Sean Rameswaram: And if it's a good opinion, those really are my reasons.
--:-- Sean Rameswaram: And then others will come along and say, oh, I can't believe he thinks that.
--:-- Sean Rameswaram: Okay, that's their right.
--:-- Sean Rameswaram: That's the purpose of an opinion.
--:-- Sean Rameswaram: And he was very, very good at striking those sorts of deals.
--:-- Sean Rameswaram: He was very good at it when he was working in the Senate.
--:-- Sean Rameswaram: He was very good at it in the Supreme Court.
--:-- Sean Rameswaram: And sadly, I mean, I think one explanation for why he might be retiring right now is that the very skill set that he had, this ability to broker those sorts of bipartisan deals, I think is now largely obsolete.
--:-- Sean Rameswaram: How did Breyer get on the Supreme Court?
--:-- Sean Rameswaram: Who appointed him?
--:-- Ian Millhiser: So Breyer was appointed to the First Circuit, to a lower court in 1980 when President Carter was a lame duck.
--:-- Ian Millhiser: This goes to show how beloved he was across the aisle.
--:-- Ian Millhiser: All that the Republicans had to do was like wait a few weeks and Ronald Reagan could have filled that seat.
--:-- Ian Millhiser: But Republicans like Justice Breyer so much that they said, no, we'll let him have it.
--:-- Ian Millhiser: We like this guy.
--:-- Sean Rameswaram: Breyer sat on the First Circuit for about 14 years.
--:-- Sean Rameswaram: 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?
--:-- Sean Rameswaram: Hmm.
--:-- Ian Millhiser: And Hatch, you know, again, this was a different era where you could have good faith conversations.
--:-- Ian Millhiser: Hatch basically said, look, like you're not going to nominate the person that I want.
--:-- Ian Millhiser: I know you're going to nominate a liberal.
--:-- Ian Millhiser: The two people you should look at are Ruth Bader Ginsburg and Stephen Breyer.
--:-- Sean Rameswaram: And who did Clinton wind up putting on the Supreme Court?
--:-- Sean Rameswaram: Ruth Bader Ginsburg and Stephen Breyer.
--:-- Sean Rameswaram: I asked the Senate to consider and to promptly confirm the nomination of just Stephen Breyer as the 108th justice of the Supreme Court.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: The case for Judge Breyer's confirmation is clear and compelling.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: So tell me how he made himself invisible once he got to the Supreme Court.
--:-- Ian Millhiser: Well, it's not so much that he made himself invisible.
--:-- Ian Millhiser: It's just that that same dealmaking skill that served him so well in the Senate also served him very well in the Supreme Court.
--:-- Sean Rameswaram: So there was a case called Fisher v. University of Texas.
--:-- Sean Rameswaram: This was a case that everyone thought was going to kill affirmative action forever in university admissions.
--:-- Sean Rameswaram: There are several thousand admissions officers in the United States, several thousand universities.
--:-- Sean Rameswaram: And what is it we're going to say here that wasn't already Studden 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?
--:-- Sean Rameswaram: You see why I'm looking for some certainty.
--:-- Ian Millhiser: What happened was Justice Kennedy initially staked out a pretty hard line position against affirmative action.
--:-- Ian Millhiser: Justice Sotomayor wrote a barn burner dissent about the importance of affirmative action.
--:-- Ian Millhiser: And Breyer was able to broker a deal between them.
--:-- Sean Rameswaram: Until maybe a few months from now when it goes before the Supreme Court again.
--:-- Sean Rameswaram: Yeah, until maybe.
--:-- Sean Rameswaram: Now there's a new case.
--:-- Sean Rameswaram: The conservative majority Supreme Court has agreed to hear a challenge to the consideration of race and college admissions.
--:-- Sean Rameswaram: The lawsuits accuse Harvard University and the University of North Carolina of discriminating against Asian American applicants in an effort to promote diversity.
--:-- Sean Rameswaram: And there's a new majority on the Supreme Court.
--:-- Sean Rameswaram: So, like, this deal isn't likely to last very long.
--:-- Sean Rameswaram: But, you know, it kept it alive for several more years.
--:-- Sean Rameswaram: 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
--:-- Sean Rameswaram: You know it did do some damage to the Affordable Care Act but it kept most of the law alive
--:-- Sean Rameswaram: Thanks, Obama.
--:-- Sean Rameswaram: He was quietly working within to try to find bipartisan ways to preserve as much of what he cared about as possible.
--:-- Sean Rameswaram: When Anthony Kennedy, who was a more moderate conservative, was on the court.
--:-- Sean Rameswaram: He was able to work with Anthony Kennedy.
--:-- Sean Rameswaram: When Justice Roberts, who's at least more moderate than the current court is, he was able to work with Chief Justice Roberts.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: OK, so he's a broker.
--:-- Sean Rameswaram: But is there a case that gives us a sense of his actual judicial philosophy?
--:-- Sean Rameswaram: One of the cases that I think he will be remembered for is Whole Women's Health v. Hellerstedt, which basically kept Roe v. Wade alive for another five or six years.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: A Mississippi abortion case was heard at the Supreme Court of the United States.
--:-- Sean Rameswaram: What happened?
--:-- Sean Rameswaram: Based on what I heard today in this Mississippi case, I think the most likely outcome is that Roe v. Wade is doomed.
--:-- Sean Rameswaram: But the last time there was a big fight over abortion, this was in 2016, it was Breyer who wound up writing the opinion.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: And he wrote the most technocratic opinion about abortion that you will ever read.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: I think that was just indicative of his approach to the law.
--:-- Sean Rameswaram: I mean he was a technocrat.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: And, you know, that is not the approach that many of the more ideological judges take.
--:-- Sean Rameswaram: But I think that that was, you know, the approach that Breyer often took in his opinions.
--:-- Sean Rameswaram: I mean, you could say that this idea that the court remain apolitical, that it just call balls and strikes, as Roberts likes to believe, is sort of being flushed down the toilet as as, you know, nomination processes become more more political.
--:-- Sean Rameswaram: And was it not Breyer who famously flushed a toilet during oral arguments in 2020?
--:-- Sean Rameswaram: I mean, there's a lot of speculation.
--:-- Sean Rameswaram: He has said is that when the subject matter of the call ranges to the topic, then the call is transformed.
--:-- Sean Rameswaram: I think Breyer was probably responsible for toilet gassy.
--:-- Sean Rameswaram: If it's yellow, let it mellow. If you're on a call with Ruth Bader, flush it later.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: Most people's reactions, certainly my reactions, your court is not this apolitical body that you might have thought it was in 1994.
--:-- Sean Rameswaram: It's become something else.
--:-- Sean Rameswaram: Breyers had a very successful career and a very successful tenure on the Supreme Court.
--:-- Sean Rameswaram: I think it's time for someone younger who better understands the politics of the moment to sit in that seat.
--:-- Sean Rameswaram: I'm talking to the students now.
--:-- Sean Rameswaram: I say I want you to pick just this up.
--:-- Sean Rameswaram: It's an experiment that's still going on.
--:-- Sean Rameswaram: And I'll tell you something.
--:-- Sean Rameswaram: You know who will see whether that experiment works?
--:-- Sean Rameswaram: It's you, my friend.
--:-- Sean Rameswaram: It's you, Mr. High School student.
--:-- Sean Rameswaram: It's you, Mr. College student.
--:-- Sean Rameswaram: It's you, Mr. Law School students.
--:-- Sean Rameswaram: It's us, but it's you.
--:-- Sean Rameswaram: It's that next generation.
--:-- Sean Rameswaram: And the one after that.
--:-- Sean Rameswaram: My grandchildren and their children.
--:-- Sean Rameswaram: They'll determine whether the experiment still works.
--:-- Sean Rameswaram: And of course, I am an optimist, and I'm pretty sure it will.
--:-- Sean Rameswaram: Ian Millhiser, he's got some books about the Supreme Court you can find at the old bookshop.
--:-- Sean Rameswaram: He's got some articles about the Supreme Court you can find over at Vox.com.
--:-- Sean Rameswaram: Our program today was produced by Amina Al-Sadi and Victoria Chamberlain.
--:-- Sean Rameswaram: It was edited by Matthew Collette and engineered by Paul Mounsey.
--:-- Sean Rameswaram: Laura Bullard checked our facts.
--:-- Sean Rameswaram: I'm Sean Ramos for them.
--:-- Sean Rameswaram: This is Today Explained.
--:-- Sean Rameswaram: Thank you.
