Vox - Stephen Breyer is retiring from the Supreme Court https://cdn.vox-cdn.com/community_logos/52517/voxv.png2022-01-27T13:11:08-05:00http://www.vox.com/rss/stream/226671942022-01-27T13:11:08-05:002022-01-27T13:11:08-05:00Retiring Justice Stephen Breyer’s nearly 28 years on the Supreme Court, explained
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<figcaption>Justice Stephen Breyer is retiring from the Supreme Court. | Pete Marovich/Bloomberg via Getty Images</figcaption>
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<p>Breyer’s best work was often the work you never knew about.</p> <p id="LOSYiC">Justice Stephen Breyer, the Supreme Court’s oldest member and one of its three remaining liberals, will <a href="https://twitter.com/ToddRuger/status/1486750034112786433">retire at the end of the Court’s current term</a>, giving President Joe Biden his first opportunity to fill a seat on the nation’s highest court.</p>
<p id="Sbl2FE">With Democrats controlling both the White House and a narrow majority in the Senate, this retirement is the party’s first real chance to fill a Supreme Court seat in more than a decade — and its first shot since <a href="https://www.vox.com/2019/5/29/18644061/mitch-mcconnell-supreme-court-hearings-2020-merrick-garland">Senate Republicans blocked</a> former President Barack Obama’s Supreme Court nominee, Merrick Garland, from receiving a hearing in 2016.</p>
<p id="JRJQBX">A former administrative law professor, Breyer often tempered his liberalism with the kind of technocratic cost-benefit analysis that is common within that field. He was the Court’s staunchest defender of the right of legislative majorities to legislate, believing that judges should be very reluctant to strike down laws under debatable readings of the Constitution — though this broad trust of legislatures did not stop him from rejecting laws that sought to infringe on abortion rights, or from becoming the Court’s most outspoken opponent of the death penalty.</p>
<p id="A4C7g8">Breyer was also a skilled dealmaker, a talent honed during his extraordinarily successful tenure as chief counsel to the Senate Judiciary Committee from 1979 to 1980. </p>
<p id="A1Y9qj">The story of how Stephen Breyer came to the Court is a reminder of how our politics has changed over the past generation. Nearly three decades ago, Democratic President Bill Clinton and Sen. Orrin Hatch, then the top Republican on the Senate Judiciary Committee, had a phone conversation. As Hatch <a href="https://www.amazon.com/Square-Peg-Citizen-Senator-Orrin-Hatch/dp/0465028683">recounted in his autobiography</a>, it was 1993, and Justice Byron White had just announced his retirement. Clinton wanted Hatch’s thoughts on who he should nominate to replace White. And Hatch — here’s the part that is unimaginable in today’s Republican Party — offered two entirely reasonable suggestions to the new president.</p>
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<cite>Doug Mills/AP</cite>
<figcaption>President Bill Clinton with then-Supreme Court nominee Stephen Breyer on May 16, 1994.</figcaption>
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<p id="zKf0kK">Clinton, Hatch told him, should consider nominating Ruth Bader Ginsburg or Stephen Breyer, both federal appellate judges at the time. According to Hatch, the future justices “were highly honest and capable jurists” and “far better than the other likely candidates from a liberal Democrat administration.”</p>
<p id="yR4Ka0">Hatch’s praise for Ginsburg may surprise modern-day readers, who <a href="https://www.vox.com/2020/9/18/20917757/justice-ginsburg-ruth-bader-ginsburg-dies">know her as feminist icon</a> the Notorious RBG. But at the time, Ginsburg was widely regarded as a moderate, center-left judge who had even <a href="https://www.vox.com/2020/9/18/20917757/justice-ginsburg-ruth-bader-ginsburg-dies">criticized the Supreme Court’s abortion rights decision</a> in <em>Roe v. Wade</em> (1973) for trying to do too much, too fast.</p>
<p id="p9NSsR">Hatch’s respect for Breyer, meanwhile, was undoubtedly shaped by the future justice’s tenure as a senior aide to Sen. Ted Kennedy.</p>
<p id="hZrnW1">As one of Kennedy’s top lieutenants on the Judiciary Committee, Breyer formed an unusually close working relationship with his Republican counterpart, minority counsel, and future federal judge Emory Sneeden, recalled <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/annam64&div=5&id=&page=">Kenneth Feinberg</a>, who worked with Breyer on Kennedy’s staff, in a tribute years ago. Breyer’s children played with the children of Sen. Strom Thurmond, the ranking Republican on the committee.</p>
<p id="KkuLzn">Breyer arrived at the Senate as a neoliberal consensus was starting to form between the two parties — he helped shepherd <a href="https://www.hoover.org/research/unpredictability-deregulation-case-airlines">legislation deregulating the airline industry</a>, a project that was popular with Republicans skeptical of government power.</p>
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<cite>Chris Martin/CQ Roll Call via Getty Images</cite>
<figcaption>Then-Supreme Court nominee Stephen Breyer with Sen. Orrin Hatch on May 19, 1994.</figcaption>
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<cite>Laura Patterson/CQ Roll Call via Getty Images</cite>
<figcaption>Sen. Ted Kennedy with then-Supreme Court nominee Stephen Breyer at his confirmation hearing on July 14, 1994.</figcaption>
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<p id="bILSJw">The result was that, when a lame-duck President Jimmy Carter nominated Breyer for a seat on the US Court of Appeals for the First Circuit in 1980, Breyer enjoyed broad support even among Republican senators. Breyer was <a href="https://www.govtrack.us/congress/votes/96-1980/s1021">confirmed 80-10</a>, even though Republicans could have filled the seat with one of their own if they’d only waited until Ronald Reagan’s inauguration.</p>
<p id="5hZ3Ir">Breyer, who is 83 years old and has served on the Supreme Court since 1994, represents one of the few remaining bridges to an era when meaningful bipartisan consensus was possible and personal relationships could sometimes overcome the drive for partisan advantage. And for many years on the Supreme Court, Breyer played a similar role to the one he played on the Senate Judiciary Committee — quietly hashing out compromises even as the political landscape tilted against his party.</p>
<p id="qJyP6L">Unfortunately, Breyer’s memories of a bygone age also left him somewhat naïve to what his Court — and American politics more generally — has now become. Many Democrats spent the first half of 2021 <a href="https://www.msnbc.com/opinion/justice-stephen-breyer-resisting-retirement-depresses-democrats-excites-gop-n1286656">pleading with Breyer to retire</a> while his party still controlled both the White House and the Senate, and thus could confirm a replacement. But Breyer initially rebuffed these calls, suggesting that if he timed his retirement to ensure a Democratic replacement, that would needlessly politicize the Court.</p>
<p id="Jw5LIh">As the justice <a href="https://www.vox.com/22454648/justice-stephen-breyer-supreme-court-retirement-book-harvard-court-packing-voting-democracy">wrote in a 2021 book</a>, “If the public comes to see judges as merely ‘politicians in robes,’” then “its confidence in the courts, and in the rule of law itself, can only decline.”</p>
<p id="nUOa5I">In any event, Breyer’s decision to retire now must come as a relief to Democrats, who’ve watched the Court become something where the kind of bipartisan deals Breyer remembers so fondly are rarely, if ever, possible. With Ginsburg’s death in September 2020 — and her replacement with the <a href="https://www.vox.com/21446700/amy-coney-barrett-trump-supreme-court">conservative Justice Amy Coney Barrett</a> — Breyer leaves a Court with a 6-3 conservative<strong> </strong>majority, one that <a href="https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court">shows far less inclination toward compromise</a> than the Court Breyer served on for most of his time as a justice.</p>
<h3 id="T5hvxC">The invisible man</h3>
<p id="OtRP0d">Breyer spent most of his 27 years on the Supreme Court as part of a four-justice liberal minority, and his public profile was often overshadowed by that of his colleagues.</p>
<p id="PcteJq">Ginsburg was the pop culture icon who, by virtue of her seniority, could assign herself the most politically charged dissenting opinions. Justice Sonia Sotomayor is the heir to liberal lions like Justices William Brennan and Thurgood Marshall, using her dissents to imagine a world where the law <a href="https://nymag.com/intelligencer/article/reintroducing-sonia-sotomayor.html">serves the most vulnerable</a>. Justice Elena Kagan is the Court’s <a href="https://archive.thinkprogress.org/justice-kagan-warns-that-the-supreme-courts-legitimacy-is-in-danger-2de1192d5636/">master negotiator</a>, whose talent for convincing Chief Justice John Roberts to think like a moderate led angry conservatives to refer to the nation’s highest tribunal as the “<a href="https://www.wsj.com/articles/another-win-for-the-kagan-court-11592264430">Kagan Court</a>.”</p>
<p id="AdM6a4">Breyer, to the extent that he has much of a reputation at all, is mostly known by Supreme Court watchers for asking <a href="https://www.columbiatribune.com/article/20080309/News/303099859">long, rambling, hypothetical questions</a> that sometimes stretch for an entire page of the Court’s official oral argument transcripts.</p>
<p id="fPOwVP">Yet if Breyer often seems invisible, that’s probably by design. “<a href="https://slate.com/news-and-politics/2020/12/stephen-breyer-interview-dahlia-lithwick-80-over-80.html">Credit is a weapon</a>,” Breyer told Slate’s Dahlia Lithwick in a December 2020 interview. One of the two most important lessons he learned from Senator Kennedy, Breyer said, is that “you give the other person the credit” for a joint accomplishment, to make it more likely they’ll be able to find common ground with you.</p>
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<cite>Ken Heinen/US Supreme Court via Getty Images</cite>
<figcaption>From left, Supreme Court Justices Ruth Bader Ginsburg, David H. Souter, Antonin Scalia, John Paul Stevens, Chief Justice John Roberts, Sandra Day O’Connor, Anthony M. Kennedy, Clarence Thomas, and Stephen G. Breyer on October 3, 2005.</figcaption>
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<p id="3N6CUJ">The other lesson he learned from his former boss? “If you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” Every dissenting opinion, Breyer said during a 2020 National Asian Pacific American Bar Association forum moderated by US District Judge Vince Chhabria, “<a href="https://www.youtube.com/watch?v=RG-lH-Y9Lb8&feature=youtu.be">is a failure</a>.”</p>
<p id="A6UfAK">Because the justices’ internal deliberations are normally a tightly kept secret, there’s no way to know how often Breyer was able to transform a dissenting opinion into a 30 percent victory. But we do know of at least a couple of times when his penchant for quietly brokering deals and giving others credit may have had a tremendous impact in high-profile cases.</p>
<p id="K46Ldl">It is likely, for example, that affirmative action survived its first<strong> </strong>two encounters with the Roberts Court because of an unplanned but successful good cop-bad cop routine that Breyer and Sotomayor used to sway the Court’s longtime swing vote, Justice Anthony Kennedy. (Although it is <a href="https://www.vox.com/2022/1/24/22526151/supreme-court-affirmative-action-harvard">unlikely to survive a third</a>.)<strong> </strong></p>
<p id="ziNHGw">Before his retirement in 2018, Kennedy sat at the center of the Supreme Court. Kennedy is conservative — he <a href="https://www.law.cornell.edu/supct/html/02-241.ZD1.html">dissented in a 2003 case</a> upholding a race-conscious admissions program at the University of Michigan’s law school — but he broke with his fellow Republicans on issues such as <a href="https://scholar.google.com/scholar_case?case=12719084930434459940">abortion</a>, <a href="https://www.law.cornell.edu/supremecourt/text/13-1371">race</a>, and <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">LGBTQ rights</a> just often enough to give liberals hope that his vote could be swayed.</p>
<p id="Uwve4F">When the Court first heard <a href="https://scholar.google.com/scholar_case?case=6883717302676149601&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Fisher v. University of Texas at Austin</em></a><em> </em>(2013), Kennedy initially voted to strike down the race-conscious admissions program at Texas’s flagship university. Sotomayor, meanwhile, drafted a blistering dissent that drew on her very personal connection to the case.</p>
<p id="W9nQK2">Sotomayor, the first Latina woman to sit on the Supreme Court, once described herself as the “<a href="https://www.cnn.com/2009/POLITICS/06/11/sotomayor.affirmative.action/index.html">perfect affirmative action baby</a>.” She was admitted to Princeton as an undergraduate, despite lower test scores than most of her classmates, and went on to graduate summa cum laude. As journalist Joan Biskupic wrote in a <a href="https://www.amazon.com/Breaking-Sonia-Sotomayor-Politics-Justice/dp/0374535663">2014 biography of Sotomayor</a>, the justice authored “a dissenting opinion that only Sotomayor, with her Puerto Rican Bronx background, could write.” It was a “rare instance when she was giving voice to her Latina identity in a legal opinion at the Court.” And it was compared with the “attention-getting fiery” tone that was more often associated with the late Justice Antonin Scalia.</p>
<p id="11L6E5">Sotomayor’s dissent, which was never published, unnerved many of her colleagues, who, according to Biskupic, were “anxious about how Sotomayor’s personal defense of affirmative action and indictment of the majority would ultimately play to the public.” With Kennedy among the justices taken aback by Sotomayor’s passion, <a href="https://psmag.com/news/may-it-displease-the-court-affirmative-action-race-and-supreme-court-justice-sonia-sotomayor">Breyer stepped up to broker a compromise</a>.</p>
<p id="YGEjHd">At Breyer’s urging, Kennedy <a href="https://www.scotusblog.com/2015/09/symposium-once-more-with-substance-how-the-supreme-court-should-approach-fisher-ii/">drafted a narrow opinion</a> that sent the case back down to the lower court for additional review. That compromise opinion wound up <a href="https://scholar.google.com/scholar_case?case=6883717302676149601">attracting the votes of seven justices</a>, including Breyer and Sotomayor. In an even more surprising development, when the <em>Fisher</em> case reached the justices again in 2016, Kennedy drafted another opinion, joined again by Breyer and Sotomayor, which <a href="https://scholar.google.com/scholar_case?case=4733326500100664777">weakened affirmative action but did not kill it</a> — leaving an outmaneuvered Justice Samuel Alito to complain in dissent that “something strange has happened since our prior decision in this case.”</p>
<p id="n9MS3d">A similar drama played out in <a href="https://www.law.cornell.edu/supremecourt/text/11-393"><em>National Federation of Independent Business v. Sebelius</em></a> (2012), the first major challenge to the Affordable Care Act to reach the Supreme Court.</p>
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<cite>Jabin Botsford/The Washington Post via Getty Images</cite>
<figcaption>Members of the US Supreme Court sit for their official group photo on November 30, 2018. Seated from left are Justices Stephen Breyer, Clarence Thomas, Chief Justice John G. Roberts, Ruth Bader Ginsburg, and Justice Samuel Alito, Jr.; standing from left are Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh.</figcaption>
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<p id="Kp53SZ">When the justices cast their initial votes in <em>NFIB</em>, they <a href="https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html">voted 5-4 along party lines</a> to strike down Obamacare’s now-defunct individual mandate, which required most Americans to either carry health insurance or pay a penalty tax. More significantly, Roberts also intended to strike down the law’s protections for people with preexisting conditions. And, as he began to draft an opinion for the Court, he also took aim at the law’s Medicaid expansion, incorporating arguments that would have allowed states to opt out without consequence.</p>
<p id="ztrg4F">The law would have become a shell of its former self. Roberts was poised to deny coverage to millions of Americans.</p>
<p id="2r4Jyk">But, as Biskupic reported, Roberts was “<a href="https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html">bothered</a>” by the partisan divide in this high-profile case involving a Democratic president’s signature law, and he eventually reached out to Breyer and Kagan to see if they’d be willing to strike a deal.</p>
<p id="ohRSUq">Though Breyer and Kagan both initially voted to uphold the law’s Medicaid expansion in its entirety, they agreed to flip their votes on this issue — giving Roberts a patina of bipartisanship for his plans to make the Medicaid expansion optional. Roberts, meanwhile, voted to uphold the individual mandate as a <a href="https://www.law.cornell.edu/supremecourt/text/11-393">valid exercise of Congress’s power to levy taxes</a>, saving protections for people with preexisting conditions in the process.</p>
<p id="YKEpq8">What could have been a catastrophic loss for millions of Americans became a much more contained attack on the law.</p>
<p id="tbIoyL">Neither one of these deals should be understood as unqualified victories for liberals. Though the Court’s second <em>Fisher</em> decision didn’t invalidate affirmative action altogether, it placed a <a href="https://archive.thinkprogress.org/surprise-affirmative-action-just-won-a-victory-no-one-expected-in-the-supreme-court-c054e3736fd8/">very high burden</a> on universities that wish to consider race in their admissions policies — a high enough burden that many universities are likely to decide that it’s not worth the expense. Similarly, while <em>NFIB</em> did not gut the Affordable Care Act, it took a significant bite out of it. As of 2020, an <a href="https://www.vox.com/2020/5/5/21247204/coronavirus-unemployment-medicaid-eligibility-health-insurance">estimated 2.3 million people</a> do not have health coverage because of Roberts’s decision to let states opt out of the law’s Medicaid expansion.</p>
<p id="pAWuG6">But both cases did far less harm, from Breyer’s perspective, than they could have.</p>
<p id="Qn9hjr">With Breyer gone, it will fall to Kagan — and, perhaps, to Sotomayor and to Breyer’s successor — to try to find ways to restrain the Court’s new 6-3 conservative majority. And it’s hardly certain that such a thing is even possible. Kennedy is no longer on the Court. And now that there are five justices to Roberts’s right, it’s <a href="https://www.vox.com/22227912/supreme-court-anti-abortion-amy-coney-barrett-era-fda-american-college-sonia-sotomayor-john-roberts">not clear his vote will matter very much</a> in the most politically charged cases.</p>
<h3 id="7jW51y">Breyer wasn’t afraid to admit that judging is hard</h3>
<p id="oYUcBF">One reason compromise is hard to find on the current Court is that many of the justices adhere to a philosophy that inherently makes concessions difficult.</p>
<p id="0QrKyF">In conservative circles, a theory known as “<a href="https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court">originalism</a>” is very much in fashion. Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”</p>
<p id="Np7Hql">This approach to constitutional interpretation often leads judges to claim they have found the only correct way to read a vague passage of the Constitution, and such an approach is hardly conducive to dealmaking. If you believe the Constitution’s meaning is fixed and that you have discovered its one true meaning, compromising with another judge who reads the Constitution differently means compromising with someone who is wrong about what the Constitution says.</p>
<p id="5eOuLl">Breyer, for his part, never claimed to have a single unified method of deciding cases. If anything, he rather ostentatiously resisted the idea that such a method could exist. In his 2005 book <a href="https://www.amazon.com/Active-Liberty-Interpreting-Democratic-Constitution/dp/0307274942"><em>Active Liberty: Interpreting Our Democratic Constitution</em></a>, Breyer embraced the idea that judging requires judgment, and the first judgment any judge needs to make before deciding a case is to choose among multiple legitimate methods of analyzing a legal text.</p>
<p id="MUvbXc">“All judges use similar basic tools to help them accomplish the task” of interpreting such a text, Breyer wrote. Judges “read the text along with related language in other parts of the document.” They consider the text’s “history, including history that shows what the language likely meant to those who wrote it.” Judges “look to tradition” indicating how this language is used in the law. They must take into account previous court decisions and other important precedents, and “try to understand the phrase’s purposes” or “the values that it embodies.” And they “consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.”</p>
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<cite>David Hume Kennerly/Getty Images</cite>
<figcaption>Supreme Court Justice Stephen Breyer works with his staff of clerks on June 17, 2002.</figcaption>
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<p id="X8Kh0I">When I first read those words as a law student who was just beginning to get his head around how lawyers and judges understand legal texts, I wanted to throw Breyer’s book out a window. Breyer offers none of the <a href="https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court">certainty or false clarity</a> that judges such as Scalia or Barrett offer when they evangelize originalism.</p>
<p id="AJ1cUM">But after spending nearly two decades studying the law, I’ve come to appreciate Breyer’s honesty. Judging is hard, especially for those who sit on a Supreme Court that exists to <a href="https://www.vox.com/2014/11/7/7174437/obamacare-supreme-court-king-two-things-you-need-to-know">answer questions that divided other judges</a>. There is no one true way to read a document as full of ambiguity as the US Constitution, and Breyer has never pretended that there is.</p>
<p id="GX0mHe">Such uncertainty, Breyer suggested, demands a degree of “judicial restraint.” Quoting Justice Louis Brandeis, Breyer wrote that judges are “ill-equipped to make the investigations which should precede” lawmaking and must sublimate their own policy preferences to those of the people. “In a constitutional democracy, ‘a deep-seated conviction on the part of the people … is entitled to great respect.’”</p>
<p id="QEtp2N">That explains why, as Breyer’s former colleague Kenneth Feinberg writes, “nobody on the Supreme Court today is <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/annam64&div=5&id=&page=">more deferential to the Congress and to congressional enactments</a> than Justice Breyer.”</p>
<p id="RcRrq3">Indeed, one reason Breyer’s vote to limit Obamacare’s Medicaid expansion was so surprising — and why Biskupic’s reporting showing that this vote came about largely due to horse-trading is so clarifying — is that Breyer’s vote to limit Congress’s power in <em>NFIB</em> is so out of character with his overarching record. When the people’s elected representatives in Congress decided a certain policy made sense, Breyer was typically inclined to defer to that decision.</p>
<h3 id="L6OiGc">Breyer and democracy</h3>
<p id="M7HVWZ">When a dissenting justice believes one of the Court’s decisions is particularly egregious or ill-considered, they register their strong disagreement by reading a summary of their dissent from the bench during the ceremony when the Court formally hands down opinions.</p>
<p id="BZIM5l">Breyer <a href="https://poseidon01.ssrn.com/delivery.php?ID=367099102068000124071078094122021107038049048023079045090090095025029114024113019112053049038042059099045106065065107106116031020036071089003023115015126097091069106073052024119025104021085122003002123113125030068093067025077107074109087067120064117091&EXT=pdf&INDEX=TRUE">read 23 such dissents from the bench</a>, and it’s notable that the very first time he did so was in the <a href="https://www.law.cornell.edu/supct/html/93-1260.ZD2.html"><em>United States v. Lopez</em></a> (1995), a case where the Supreme Court took its first step away from more than half a century of deference to Congress’s decisions about how best to regulate the economy.</p>
<p id="PJcMbw"><em>Lopez</em> involved a federal law that made it a crime to “knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone,” and a bare majority of the Court concluded the law was beyond Congress’s constitutional authority to “<a href="https://www.law.cornell.edu/constitution/articlei#:~:text=Article%20I%20describes%20the%20design,the%20powers%20that%20Congress%20has.">regulate commerce … among the several states</a>.” Although guns in school zones do impact the economy, both by increasing violent crime that can disrupt commerce and by threatening a learning environment where young people are trained to succeed in the workplace, the majority deemed this connection between guns and economic activity to be too attenuated to sustain the law.</p>
<p id="0q0DOG">One of the majority’s primary concerns was that if the federal ban on guns in school zones were upheld, Congress’s power to regulate commerce could be used to justify virtually any law. “To uphold the Government’s contentions here,” Chief Justice William Rehnquist wrote for the Court, “we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”</p>
<p id="xFtwao">The immediate practical implications of <em>Lopez</em> were virtually nonexistent. Not long after the decision was handed down, Congress amended the law to provide that guns were banned from school zones only if the gun <a href="https://www.law.cornell.edu/uscode/text/18/922">“has moved in” or “otherwise affects interstate or foreign commerce”</a> (meaning that any gun that has traveled across state lines should qualify), and the Supreme Court has, at least so far, allowed the amended statute to stand.</p>
<p id="J8ZwZZ">But the symbolic implications of <em>Lopez</em> were enormous because it revived a kind of constitutional thinking that many judges viewed as akin to black magic for much of the 20th century.</p>
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<figcaption>Justice Stephen Breyer testifies before the House Judiciary Committee’s Commercial and Administrative Law Subcommittee on May 20, 2010.</figcaption>
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<p id="G5IEHp">Beginning in the late 19th century, the Supreme Court created a number of <a href="https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court">rigid and often arbitrary limits</a> on Congress’s power to regulate commerce, culminating in a 1918 decision <a href="https://www.law.cornell.edu/supremecourt/text/247/251">striking down a federal child labor law</a>. The reason the Court effectively allowed Congress to determine whether a particular law was a valid regulation of commerce for most of the 20th century is that it feared returning to an age of arbitrary judicial power, when economic laws were struck down because a majority of the Court disagreed with them.</p>
<p id="mwMG4b">Thus, while the <em>Lopez</em> majority feared that Congress’s powers might grow so big that they’d encroach on the prerogatives of the states, Breyer was more fearful that the Supreme Court’s power would grow so big that it would encroach on the prerogatives of the people’s elected representatives. </p>
<p id="4tjl2b">Breyer showed a similar instinct in his dissent in <a href="https://scholar.google.com/scholar_case?case=4912720087167930056&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>FDA v. Brown & Williamson Tobacco Corp.</em> </a>(2000), a case that foreshadowed many of the current majority’s <a href="https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul">attacks on the power of federal agencies to regulate private businesses</a>. </p>
<p id="Yzrnoh">The issue in <em>Brown & Williamson</em> was whether a federal law giving the FDA the authority to regulate any “drug” — a term that was defined to include “articles (other than food) intended to affect the structure or any function of the body” — allowed the FDA to regulate nicotine and thus place limits on the tobacco’s industry’s ability to market its products to children.</p>
<p id="YCju0v">Though it had a very strong argument that nicotine met the law’s definition of a “drug” — nicotine, the FDA determined, “‘exerts psychoactive, or mood-altering, effects on the brain’ that cause and sustain addiction, have both tranquilizing and stimulating effects, and control weight” — a bare majority of the Court struck down the FDA’s tobacco regulations, largely due to concerns that upholding them would place too much power in the hands of the executive branch of government. (Congress amended the law in 2009 to <a href="https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/family-smoking-prevention-and-tobacco-control-act-overview">explicitly give the FDA authority to regulate tobacco</a>.)</p>
<p id="Yp388t">Just as in <em>Lopez</em>, a conservative majority believed that it needed to impose limits on an elected branch of government — or, at least, on an agency that is accountable to an elected president — in order to prevent that branch from becoming too powerful. And, just as in <em>Lopez</em>, Breyer used his dissent to call upon his Court to have more respect for democracy. The proper remedy for a too-aggressive federal agency, Breyer wrote, isn’t a lawsuit. It is the electoral process itself.</p>
<p id="lR9iRn">“Insofar as the decision to regulate tobacco reflects the policy of an administration,” Breyer said in his <a href="https://scholar.google.com/scholar_case?case=4912720087167930056&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Brown & Williamson</em> dissent</a>, “it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility.”</p>
<p id="GXxcB0">Breyer placed such great trust in democracy that he sometimes insisted that grand philosophical debates over the nature of our Constitution should be resolved by legislatures and not by judges. The Court’s decision in <a href="https://www.law.cornell.edu/supct/html/05-908.ZO.html"><em>Parents Involved in Community Schools v. Seattle School District No. 1</em></a> (2007), for example, involved a harrowing dispute about the nature of racial justice and the legacy of the Court’s landmark school desegregation decision in <em>Brown v. Board of Education</em> (1954).</p>
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<figcaption>Supreme Court Justice Stephen Breyer speaks with a reporter at the Supreme Court on May 17, 2012.</figcaption>
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<p id="xxo42U"><em>Parents Involved</em> concerned two school districts that sought to reduce racial segregation within their schools. Rather than assigning all students to the school closest to their home, for example, a Seattle school district allowed students to rank which schools they would prefer to attend. If too many students listed a particular school as their first choice, students who would increase the racial diversity of that school were given a slight preference.</p>
<p id="7VsHjN">To Chief Justice Roberts, who wrote a plurality opinion on behalf of himself and three other justices, this practice was no less odious than Jim Crow discrimination because it required the government to classify some students based on their race. Roberts <a href="https://www.law.cornell.edu/supct/html/05-908.ZO.html">concluded his opinion with a rhetorical flourish</a>: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” </p>
<p id="G1lJq7">Justice John Paul Stevens, meanwhile, wrote a dissenting opinion accusing Roberts of missing the entire point of <em>Brown v. Board of Education</em>. “The history books <a href="https://www.law.cornell.edu/supct/html/05-908.ZD.html">do not tell stories of white children struggling to attend black schools</a>,” Stevens wrote, adding that Roberts’s opinion “reminds me of Anatole France’s observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”</p>
<p id="Km56Sj">But Breyer’s dissent would have left many questions regarding how to dismantle segregation — and regarding the true legacy of <em>Brown</em> — <a href="https://www.law.cornell.edu/supct/html/05-908.ZD1.html">up to democratically elected officials</a>. “The government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so,” Breyer wrote, and courts have an obligation to respect the government’s decision to do so.</p>
<p id="mkpI0r">To be clear, Breyer does not question the legitimacy of <em>Brown</em> itself — he would not have deferred to a government’s decision to intentionally segregate its public schools. But, in the absence of the kind of egregious misconduct that characterized Jim Crow, Breyer would have given elected officials a great deal of leeway to decide how to build a pluralistic, racially integrated society.</p>
<h3 id="G6dqmt">When democracy isn’t enough</h3>
<p id="2VWPRn">Breyer’s commitment to democracy is profound, but it is not absolute. And the retiring justice did feel a special obligation to police arbitrary governmental practices.</p>
<p id="g7owkD">In recent years, for example, Breyer became the Court’s most outspoken opponent of the death penalty — in large part because of his belief that it cannot be fairly administered. “Death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Breyer wrote in his dissenting opinion in <a href="https://casetext.com/case/glossip-v-gross"><em>Glossip v. Gross</em></a> (2015), quoting from a 1972 opinion by Justice Potter Stewart. Rather than handing down death sentences exclusively to the worst criminals, such sentences are doled out to a “capriciously selected random handful” of the most serious offenders.</p>
<p id="KSPqea">Breyer bolstered this argument with empirical studies showing that an offender is <a href="https://poseidon01.ssrn.com/delivery.php?ID=784088029100024000074115088090114125020086007086005029102125022108070007004074017018030032052041121125058094124088004031112098016009071049003069124079090004068102089000078114080121109065098027012096118088101080005111001068116065118090064101116003104&EXT=pdf&INDEX=TRUE">far more likely to be sentenced to die if their victim is white</a>. Or if their victim is a woman. Or if the offender is merely unfortunate enough to be tried in the wrong location. “Within<em> </em>a death penalty State,” Breyer wrote in his <em>Glossip </em>dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.”</p>
<p id="VQCJ7F">For these and other reasons, Breyer concluded that it is “highly likely that the death penalty violates the Eighth Amendment,” and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.</p>
<p id="lpp2eW">Breyer was also, in Dahlia Lithwick’s words, “<a href="https://slate.com/news-and-politics/2014/08/justice-stephen-breyer-feminist.html">the fourth feminist</a>” on the Supreme Court (a title Lithwick bestowed upon him while Ginsburg was still alive). He was, among other things, a staunch supporter of abortion rights. When the conservative Justice Kennedy cast a somewhat surprising vote to strike down an anti-abortion law in <a href="https://scholar.google.com/scholar_case?case=12719084930434459940&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Whole Woman’s Health v. Hellerstedt</em></a><em> </em>(2016), he chose his friend and frequent negotiating partner Justice Breyer to write the opinion of the Court.</p>
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<cite>Brendan Smialowski/AFP via Getty Images</cite>
<figcaption>Supreme Court Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito listen as President Trump speaks during the swearing-in ceremony of Brett Kavanaugh on October 8, 2018.</figcaption>
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<p id="2kSbiv">But Breyer never explained how he squared his full-throated support for abortion rights with his general view that judges should defer to democratically elected lawmakers. And it’s not like the two views are incompatible.</p>
<p id="3vP8OV">Ginsburg, for her part, grounded her support for abortion rights in the democratic principle that women should be able to “<a href="http://www.law.nyu.edu/sites/default/files/ECM_PRO_059254.pdf">participate equally in the economic and social life of the Nation</a>” — a principle that is undermined if women do not have full control over their own bodies — but Breyer never made a similar attempt to reconcile his willingness to overturn a legislature’s decision to restrict abortion with his overarching view that judges should protect democracy.</p>
<p id="uqJ3mG">Instead, his opinion in <em>Whole Woman’s Health </em>emphasizes the kind of technocratic, cost-benefit analysis that one might expect from Breyer. When confronted with an abortion restriction, Breyer wrote, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”</p>
<p id="AH10Zn">Breyer’s opinions in <em>Glossip</em> and <em>Whole Woman’s Health</em> were departures from his broader calls for “judicial restraint” — but such departures were the exception rather than the rule in his jurisprudence. Breyer saw himself as the caretaker of a Constitution built for a pluralistic society, where disagreements ordinarily should be resolved in the legislature and not the judiciary.</p>
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<cite>Bill Clark/CQ Roll Call via Getty Images</cite>
<figcaption>Justice Stephen Breyer arrives for President Trump’s State of the Union Address on January 30, 2018. </figcaption>
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<p id="4m4THk">Concurring in <a href="https://casetext.com/case/van-orden-v-perry-4?q=van%20orden%20v.%20perry&PHONE_NUMBER_GROUP=P&sort=relevance&p=1&type=case&resultsNav=false"><em>Van Orden v. Perry</em></a> (2005), in an opinion that angered many liberals because it upheld a religious display on government property, Breyer warned that religious disagreements can often divide society, and he saw his Court as charged with soothing those divisions. The Constitution’s provisions dealing with religion, Breyer wrote, “seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”</p>
<p id="qufECK">Breyer could have written similar words about many provisions of the Constitution. The retiring justice will leave behind a Court that is much more factional, and much more confident in its own authority to make decisions on behalf of the American people, than the one he joined a quarter-century ago. But Breyer, at least, remained committed to pluralism, compromise, and the democratic process that makes pluralism and compromise possible.</p>
https://www.vox.com/22262764/stephen-breyer-supreme-court-justice-abortion-bidenIan Millhiser2022-01-27T13:10:10-05:002022-01-27T13:10:10-05:00Who is on Biden’s shortlist to replace retiring Justice Breyer?
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<figcaption>Supreme Court Justice Stephen Breyer speaks alongside President Joe Biden during a retirement ceremony at the White House on January 27. Breyer, who was appointed by President Bill Clinton, has been on the court since 1994. | Drew Angerer/Getty Images</figcaption>
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<p>Biden promised to nominate a Black woman to the Supreme Court. Now he has his chance.</p> <p id="2smODb">With <a href="https://www.vox.com/22262764/stephen-breyer-supreme-court-justice-abortion-biden">Justice Stephen Breyer’s retirement</a> opening a seat on the Supreme Court, President Joe Biden has a chance to fulfill a campaign promise to <a href="https://www.vox.com/2020/2/25/21153824/biden-black-woman-supreme-court">name a Black woman to the Court</a> for the first time.</p>
<p id="rxK7QP">Only two African Americans, Justices Thurgood Marshall and Clarence Thomas, have served on the nation’s highest court, and only one woman of color has been a justice — Justice Sonia Sotomayor, who is Latina. And Black women aren’t just unrepresented on the Supreme Court, they are also massively underrepresented on the federal bench. And they were even more so before Biden took office.</p>
<p id="cOwqM1">Nearly all recent justices previously served on a federal appeals court before getting promoted to the high court. Of the nine current justices, only Justice Elena Kagan did not. But, when Biden took office, <a href="https://www.fjc.gov/history/judges/search/advanced-search">only five of the nearly 300 sitting federal appellate judges</a> were Black women, according to the Federal Judicial Center. Biden has doubled that number, placing five more Black women on the federal appellate bench.</p>
<p id="y2kzqL">Presidents typically prefer to name justices who are, at most, in their early- to mid-50s so that their nominee will still have a long career ahead of them. But the youngest Black woman who served as a federal appellate judge when Biden took office, <a href="https://www.fjc.gov/history/judges/rawlinson-johnnie-b">Judge Johnnie B. Rawlinson</a> of the United States Court of Appeals for the Ninth Circuit, is in her late 60s. So, if Biden follows the common practice of choosing a sitting federal appellate judge as his nominee, he will almost certainly choose someone he’s already elevated to an appeals court.</p>
<p id="7GyCvZ">Indeed, one of Biden’s appointees, Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit, is widely considered to be one of two frontrunners for the Supreme Court vacancy. </p>
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<cite>Bettmann Archive</cite>
<figcaption>President Ronald Reagan shows then-Arizona Judge Sandra O’Connor the way into the Rose Garden before meeting at the White House on July 15, 1981. O’Connor was Reagan’s first appointment to the Supreme Court and the first woman to serve on the Court.</figcaption>
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<p id="RjfBBf">But Biden could also take a page from President Ronald Reagan’s playbook. </p>
<p id="omnOZb">Reagan promised to nominate the first woman to the Supreme Court, but when a vacancy opened up early in Reagan’s presidency, women of all racial backgrounds were underrepresented on the federal bench, and conservative women who shared Reagan’s political views were especially underrepresented.</p>
<p id="VCPybe">So Reagan <a href="https://www.politico.com/story/2018/07/07/reagan-nominates-first-woman-to-high-court-july-7-1981-694902">turned to state courts</a>, appointing a mid-level Arizona appeals court judge named Sandra Day O’Connor to the Supreme Court. If Biden wishes to follow this model, he could pick someone like Justice Leondra Kruger of the California Supreme Court, who is considered to be another<strong> </strong>frontrunner for Breyer’s seat.</p>
<p id="sJVVVh">Biden could also potentially look to other high-ranking government officials or even prominent lawyers and legal scholars to fill the vacant seat. The modern practice of almost exclusively placing sitting judges on the Supreme Court is fairly new. President Franklin Roosevelt named two senators (Hugo Black and Jimmy Byrnes), two US attorneys general (Robert Jackson and Frank Murphy), one US solicitor general (Stanley Reed), one chair of a federal agency (William Douglas), and one law professor (Felix Frankfurter) to the Court.</p>
<p id="Tk1S3d">The following list of potential Biden nominees was compiled from multiple sources. It includes women who’ve been mentioned in the press as potential Biden nominees, women who’ve been pushed by interest groups and prominent Democrats, and women who President Barack Obama considered naming to the Court.</p>
<p id="U9WUqr">In compiling this list, I made some judgment calls about who to exclude. An Axios article from 2020, for example, <a href="https://www.axios.com/joe-biden-supreme-court-ginsburg-nominees-liberal-justices-ab9471df-ac9c-4fbe-a4ec-0e34f84ef70e.html">listed six potential candidates</a> who were being discussed by unnamed “progressive advocates.” But two of the names on that list are academics who do not have a law degree. It seems unlikely that Biden will choose a non-lawyer to serve at the apex of the American judiciary. </p>
<p id="6YwKQ0">I also excluded potential nominees who are over the age of 55.</p>
<p id="y3tQqo">This list also assumes that Biden will keep his promise to name a Black woman to the Supreme Court. If he chooses to expand his list, that would open the door to a wide range of other highly qualified candidates, including sitting federal appellate Judges <a href="https://en.wikipedia.org/wiki/Sri_Srinivasan">Sri Srinivasan</a>, <a href="https://en.wikipedia.org/wiki/Paul_J._Watford">Paul Watford</a>, and <a href="https://en.wikipedia.org/wiki/Michelle_Friedland">Michelle Friedland</a>, and former California Supreme Court <a href="https://en.wikipedia.org/wiki/Mariano-Florentino_Cu%C3%A9llar">Justice Mariano-Florentino Cuéllar</a>.</p>
<p id="dOLvdf">But there is no shortage of relatively young, legally trained Black women who are qualified to serve on the Supreme Court, and who are likely to share the Democratic Party’s broad approach to the law, even if not all of these women already serve on the federal bench.</p>
<p id="40tJhQ">Here are the top contenders.</p>
<h3 id="kwIyDy">The frontrunners</h3>
<p id="uVei5S">Virtually every list of potential Biden nominees <a href="https://www.vox.com/2020/2/25/21153824/biden-black-woman-supreme-court">includes two names</a>: federal appellate Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger. Both women are fairly young (Jackson is 51; Kruger is 45) and both women have significant judicial experience. Jackson was appointed to a federal trial judgeship by President Barack Obama in 2013, and was recently confirmed to the powerful United States Court of Appeals in the District of Columbia circuit. Kruger joined California’s highest court in 2015.</p>
<p id="hTB758">Both women also clerked on the Supreme Court — Jackson clerked for Breyer and Kruger for Justice John Paul Stevens — an elite credential that can elevate a young lawyer to the upper echelons of the legal profession very early in their career. Six of the Court’s current members clerked for a justice shortly after graduating from law school.</p>
<h4 id="4mGOeo">Judge Ketanji Brown Jackson</h4>
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<cite>Tom Williams/Getty Images</cite>
<figcaption>Judge Ketanji Brown Jackson of the Court of Appeals for the DC Circuit, testifies during her Senate Judiciary Committee confirmation hearing on April 28, 2021. She is considered a potential candidate for President Joe Biden’s Supreme Court shortlist.</figcaption>
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<p id="2IbZ2X">Jackson will likely be a favorite of criminal justice reformers if appointed to the Supreme Court. A former public defender, Jackson served as vice chair of the United States Sentencing Commission from 2010 to 2014, a period in which the commission cut sentences significantly for many federal drug offenders.</p>
<p id="sVUoM9">The commission <a href="https://www.cnn.com/2011/11/01/justice/crack-cocaine-sentencing/index.html">retroactively reduced sentences for many crack cocaine offenses</a> in 2011, allowing 12,000 inmates to seek reduced sentences and making an estimated 1,800 inmates eligible for immediate release. And it <a href="https://www.themarshallproject.org/2015/07/23/federal-prisons-could-release-1-000-times-more-drug-offenders-than-obama-did">cut sentences for most federal drug offenders</a> during Jackson’s last year on the commission.</p>
<p id="0S1xGc">Though Jackson spent the bulk of her judicial career as a district judge (the federal judiciary has three levels of judges with lifetime appointments: district judges who try most cases, circuit or appellate judges who hear appeals from district court decisions, and the Supreme Court), she served on the United States District Court for the District of Columbia, which hears an unusually large number of lawsuits alleging executive overreach. </p>
<p id="vwAX3I">Thus, in <a href="https://casetext.com/case/am-fedn-of-govt-emps-v-trump"><em>American Federation of Government Employees v. Trump</em></a> (2018), Jackson struck down several provisions of three executive orders signed by President Trump which sought to limit the ability of federal workers’ unions to collectively bargain. And in <a href="https://www.docketbird.com/court-documents/Committee-On-the-Judiciary-of-the-U-S-House-of-Representatives-v-McGahn-II/MEMORANDUM-OPINION-GRANTING-22-Plaintiffs-Motion-for-Expedited-Partial-Summary-Judgment-and-DENYING-32-Defendants-Motion-for-Summary-Judgment-Signed-by-Judge-Ketanji-Brown-Jackson-on-11-25-2019-jag-Main-Document-46-replaced-on-12-16-2019-zgdf/dcd-1:2019-cv-02379-00046"><em>Committee on the Judiciary v. McGahn</em></a> (2019), Jackson held that former Trump White House counsel Donald McGahn could be compelled to testify before a House committee — although Jackson also explained that McGahn might be able to refuse to answer some questions “on the basis of a valid privilege.”</p>
<p id="OcAIl9">Both of these decisions were <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/0/6402FB14D0F73EDD852585D5005DA953/%24file/19-5331-1859039.pdf">later</a> <a href="https://federalnewsnetwork.com/wp-content/uploads/2019/07/071619_workforce_EO_appeal_opinion.pdf">reversed</a> by the DC Circuit Court — though in both cases the appeals court panel that reversed Jackson had a conservative majority.</p>
<p id="il5imY">As an appellate judge, Jackson also sat on a panel that held that the US House investigation into the January 6 attack <a href="https://www.vox.com/2021/12/19/22837673/supreme-court-trump-january-6-investigation-executive-privilege-thompson">could obtain certain White House records from the Trump administration</a>, despite Trump’s objections. That decision was <a href="https://www.vox.com/2022/1/19/22892248/supreme-court-january-6-trump-thompson-commitee-subpoena">upheld by the Supreme Court earlier this month</a>.</p>
<h4 id="qXgzDc">Justice Leondra Kruger</h4>
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<cite>S. Todd Rogers/AP</cite>
<figcaption>Leondra Kruger addresses the Commission of Judicial Appointments during her confirmation hearing to the California Supreme Court in San Francisco on December 22, 2014.</figcaption>
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<p id="hkveX9">Before her elevation to the California Supreme Court, Kruger was a top Justice Department lawyer, at one point serving as acting principal deputy solicitor general — the second-highest-ranking Supreme Court advocate in the federal government. Justice Kagan, herself a former solicitor general, reportedly described Kruger as “<a href="https://www.latimes.com/local/lanow/la-me-ln-kruger-court-20180531-story.html">one of the best advocates in the Department of Justice</a>.”</p>
<p id="Q35KX7">With her appointment to the bench at the young age of 38, Kruger joined a court that was still dominated by Republican appointees — justices chosen by Republican Govs. Pete Wilson and Arnold Schwarzenegger held four of the state supreme court’s seven seats when Kruger first donned her black robe, though the Court now has a solid Democratic majority. </p>
<p id="EG71mT">Kruger garnered a reputation as a moderate incrementalist. In one particularly notable opinion, <a href="https://scholar.google.com/scholar_case?case=16954966946165185446&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>People v. Buza</em></a> (2018), Kruger wrote her court’s 4-3 decision rejecting a challenge to California’s Proposition 69, which required police to collect DNA samples from all individuals arrested for a felony offense. Her opinion was joined by three Republican appointees, while three Democrats dissented.</p>
<p id="mRq5sK">Yet Kruger’s <em>Buza</em> opinion is more of a tribute to her cautious approach to judging than it is to any kind of ideological conservatism. <em>Buza</em> did not so much uphold Prop 69 as hold that the defendant was the wrong person to bring a challenge to the law. </p>
<p id="q9XItI">Kruger based much of her opinion on the US Supreme Court’s decision in <a href="https://scholar.google.com/scholar_case?case=3234257148722545343&hl=en&as_sdt=6,47&as_vis=1"><em>Maryland v. King</em></a> (2013), which held that “when officers make an arrest supported by probable cause to hold for a serious offense,” those officers may take “a cheek swab of the arrestee’s DNA.” The defendant in <em>Buza</em> “was validly arrested on ‘probable cause to hold for a serious offense’” —that defendant was arrested on a felony arson charge and was ultimately convicted.</p>
<p id="GJQKn9">In a 2018 interview with the Los Angeles Times, Kruger explained that her approach to the law “reflects the fact that we operate in a system of precedent.” She said that she aims “to perform my job in a way that enhances the predictability and stability of the law and public confidence and trust in the work of the courts.”</p>
<p id="gh2LYg">While this desire to preserve existing law may make Kruger an awkward US Supreme Court nominee if she were likely to become the Court’s swing vote, the Biden camp may not see this as a problem for a nomination to the current Court, with its conservative supermajority.</p>
<p id="8qAPey">Realistically, whoever Biden appoints to the Supreme Court is unlikely to reshape the law in a way that will please Democrats — Democrats don’t have the votes to do anything other than play defense on the high court. But someone like Kruger might be able to convince her conservative colleagues to embrace caution, and to be more reluctant to toss out longstanding precedents.</p>
<h3 id="gSL6bu">The new class</h3>
<p id="ZQLAlF">Though few Black women currently serve on the federal appellate bench, President Biden’s judicial nominees suggest that he <a href="https://www.vox.com/2021/3/30/22358434/biden-first-judicial-nominees-ketanji-brown-jackson-public-defenders-diversity-criminal-justice">hopes to remedy this imbalance</a>. In addition to Jackson, Biden’s appointed four other Black women to federal appellate judgeships, two of whom are plausible Supreme Court contenders.</p>
<p id="MPyhQq">Judge<strong> </strong>Candace Jackson-Akiwumi — whom Biden appointed to the Seventh Circuit, which oversees federal litigation in Illinois, Indiana, and Wisconsin — is a Yale law graduate who clerked for a federal circuit judge before entering practice. Although she was a partner at a large law firm immediately before her elevation to the bench, she spent 10 years as a public defender.</p>
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<cite>Tom Williams/Getty Images</cite>
<figcaption>Candace Jackson-Akiwumi, then-nominee to be US Circuit Judge for the Seventh Circuit, testifies during her Senate Judiciary Committee confirmation hearing on April 28, 2021.</figcaption>
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<p id="HZywqO">Similarly, Judge Eunice Lee, a Biden nominee to the Second Circuit, also graduated from Yale Law School and clerked for a federal appellate judge (Lee clerked for Judge Eric Clay of the Sixth Circuit, who I also clerked for). She has more than two decades of experience arguing appeals for indigent criminal defendants.</p>
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<cite>Tom Williams/CQ-Roll Call, Inc via Getty Images</cite>
<figcaption>Eunice C. Lee, then-nominee to be US circuit judge for the Second Circuit, is sworn in during a Senate Judiciary Committee confirmation hearing for judicial nominees on June 9, 2021.</figcaption>
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<p id="Xa67eH">There are a few other candidates who appear less likely picks — at least for the current opening. </p>
<p id="Vtaaea">Tiffany Cunningham, who sits on the Federal Circuit, a highly specialized court that primarily deals with patent law, is unlikely to ever be nominated to the Supreme Court. Judge Holly Thomas, who was very recently confirmed to the Ninth Circuit, is a former civil rights attorney, Yale Law School graduate, and former Ninth Circuit law clerk. Because Thomas has literally only been a judge for less than a week, she is an unlikely contender for the Breyer seat. But she could be a very strong contender for a future vacancy if it arises under a Democratic president and a Democratic Senate.</p>
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<cite>Tom Williams/CQ-Roll Call, Inc via Getty Images</cite>
<figcaption>Tiffany P. Cunningham, then-nominee to be US circuit judge for the Federal Circuit, prepares for her Senate Judiciary Committee confirmation hearing on May 26, 2021. </figcaption>
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<p id="TfC1mo">Jackson-Akiwumi and Lee’s<strong> </strong>primary liabilities are that they have no judicial experience prior to being nominated by Biden. So they are less likely to receive a Supreme Court nod than experienced jurists like Jackson or Kruger. Nevertheless, both women are fairly young — Lee is in her early 50s and Jackson-Akiwumi in her early 40s — so they could also<strong> </strong>plausibly be in the mix for a future vacancy even if they are not nominated to replace Breyer.</p>
<h3 id="cUjiuj">The long shots</h3>
<p id="U5Geon">In addition to the names mentioned above,<strong> </strong>there are a handful of other potential candidates. These include prominent academics, civil rights lawyers, and some lesser-known judges with powerful benefactors.</p>
<p id="27rB78">The most notable example of the latter category is <a href="https://www.nytimes.com/2021/02/21/us/politics/biden-supreme-court-black-woman.html">Judge J. Michelle Childs</a>, a federal district judge in South Carolina. Appointed to the bench by President Obama in 2009, Childs was the first Black woman to become a partner in one of South Carolina’s major law firms, according to the New York Times. She also held various positions in state government. Biden <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/23/president-biden-names-twelfth-round-of-judicial-nominees/">recently nominated her to a seat on the DC Circuit</a>.</p>
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<cite>Charles Dharapak/AP</cite>
<figcaption>Judge J. Michelle Childs, who was nominated by President Barack Obama to the US District Court, listens during her nomination hearing before the Senate Judiciary Committee on Capitol Hill on April 16, 2010. </figcaption>
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<p id="QBSvZd">Childs’s best shot at a Supreme Court nomination stems from the fact that she has a powerful advocate. Rep. Jim Clyburn, a senior House Democrat who played a significant role in helping Biden win the presidential primary in South Carolina that reinvigorated his 2020 campaign, reportedly <a href="https://www.nytimes.com/2021/02/21/us/politics/biden-supreme-court-black-woman.html">floated Childs as a potential Supreme Court justice</a>.</p>
<p id="USwQPg">The same New York Times article that reported Clyburn’s interest in Childs also mentioned two other names that “have caught the eye of lawmakers” — <a href="http://law.howard.edu/faculty-staff/dean-danielle-holley-walker">Danielle Holley-Walker</a>, the young dean of Howard University’s law school, and <a href="https://en.wikipedia.org/wiki/Leslie_Abrams_Gardner">Leslie Abrams Gardner</a>, a federal district judge who is also the younger sister of Georgia politician and voting rights activist Stacey Abrams.</p>
<p id="AMJLnm">Additionally, the left-leaning group Demand Justice compiled its own “<a href="https://demandjustice.org/supreme-court-shortlist/">Supreme Court shortlist</a>” of potential nominees. Their list includes a number of Black women who are young enough to be plausible nominees, including Oregon Supreme Court Justice Adrienne Nelson, civil rights lawyer Janai Nelson, NYU law professor Melissa Murray, and Kristen Clarke, who currently leads the Justice Department’s Civil Rights Division.</p>
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<p class="caption">Assistant Attorney General for Civil Rights Kristen Clarke speaks at a news conference at the Department of Justice in Washington, DC, on August 5, 2021. </p>
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<p id="gaeawF">It seems unlikely that the nominee will be any of these candidates. Jackson and Kruger are the frontrunners not simply because they are well qualified for the job, but also because they are well known and trusted by the sort of people who typically shape Supreme Court nominations. They also have the kinds of resumes that one typically finds in a Supreme Court nominee.</p>
<p id="IkWcgm">But fairly young figures such as Holley-Walker, Murray, or Clarke could easily see their stock rise in the future — especially if Biden places any of them on a lower appellate court.</p>
https://www.vox.com/22346420/supreme-court-breyer-retires-ketanji-brown-jackson-leondra-kruger-biden-pickIan Millhiser2022-01-26T16:00:00-05:002022-01-26T16:00:00-05:00Democrats have precedent for a speedy Supreme Court confirmation
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<figcaption>Members of the Supreme Court pose for a group photo in Washington, DC in April 2021. | Erin Schaff/Getty Images</figcaption>
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<p>What’s next in the Senate, now that Justice Stephen Breyer is stepping down.</p> <p id="vEeEdb"><a href="https://www.vox.com/22262764/stephen-breyer-supreme-court-justice-abortion-biden">In the wake of reports that Justice Stephen Breyer is retiring</a>, the Senate now has another major agenda item to contend with in the coming months: a Supreme Court confirmation process. </p>
<p id="bXn5f3">That task joins a long list of priorities: Democrats have to pass a bill on government funding by February 18 in order to avoid a government shutdown; they are trying to complete work on an update to the Electoral Count Act and a bill aimed at increasing the US’s competitiveness with China in the next few weeks; and they hope to restart talks on their massive climate and social spending initiative, the Build Back Better Act, in time to pass at least part of it before the 2022 midterms.</p>
<p id="vBNDTp">That’s a lot. Fortunately for Democrats, seating a new justice on the Supreme Court could be the easiest of their many tasks. </p>
<p id="S7CvyN">Here’s how the process would work logistically: First, President Joe Biden will have to nominate an appointee to take Breyer’s seat. Once he does, the process can move relatively quickly in the Senate — think back to Justice Amy Coney Barrett’s expedited confirmation in October 2020. Former President Donald Trump announced Barrett’s nomination on <a href="https://www.npr.org/sections/supreme-court-nomination/2020/09/26/916921211/trump-set-to-formally-announce-his-supreme-court-nominee">September 26</a> and <a href="https://www.vox.com/2020/10/26/21529619/amy-coney-barrett-confirmed-supreme-court">the Senate confirmed her on October 26</a>. This was one of the fastest confirmations in history — <a href="https://sgp.fas.org/crs/misc/R44234.pdf">typically, the process takes a little over two months on average</a> — but there’s no reason Democrats can’t replicate Republicans’ strategy here.</p>
<p id="RWkl78">Because Supreme Court nominees only need a simple majority to be confirmed, Democrats are able to unilaterally move through any appointment with their 50-person majority and the help of Vice President Kamala Harris’s tie-breaking vote. The main issue they’ll have to address is maintaining party unity on the nominee, since they’d need every vote in order to confirm a justice if Republicans don’t support the pick. </p>
<p id="mChV9w">Senate Majority Leader Chuck Schumer (D-NY) and Senate Judiciary Committee chair Dick Durbin (D-IL) have yet to provide details about when this process could get underway, though both have said they intend to handle it quickly once it does. <a href="https://www.cnn.com/2022/01/26/politics/congress-reaction-breyer-retirement/index.html">As CNN reported</a>, Democrats are expected to weigh a new nominee before the end of the Supreme Court’s term this summer. </p>
<p id="gQaV9i">“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Schumer said in a Wednesday statement. There’s plenty of precedent for Democrats to do just that. </p>
<h3 id="VPTSke">There’s precedent for a speedy confirmation process </h3>
<p id="WQwE0O">Lawmakers need look no further than the last Supreme Court confirmation process for an example of how quickly the Senate is able to approve a nominee if the votes are there. </p>
<p id="tSyWbt">In the fall of 2020, Republicans were able to hold a confirmation hearing for Justice Amy Coney Barrett within a few weeks of her nomination. It’s a process Democrats could well emulate for whoever Biden decides to nominate, holding a confirmation hearing, committee vote, and Senate vote in quick succession. </p>
<p id="IVxYtc">Because of how narrow their majority is, and the even split of Democratic and Republican lawmakers on the Judiciary Committee, there could be some extra steps needed to advance Biden’s nominee to a floor vote if the committee’s approval vote ends in a tie. Essentially, Schumer could bypass the tie in the committee, and hold a procedural vote regarding floor consideration of the nomination, which can pass with a simple majority. But even with that step, the confirmation process is still one that could move pretty quickly. </p>
<p id="xATNPX">“There’s nothing that technically stops the Democrats from moving at breakneck speed to confirm a successor to Justice Breyer,” says George Washington University political science professor Sarah Binder. </p>
<h3 id="c9AbO5">The vote hinges on Democratic unity </h3>
<p id="c86OPP">As has been the case with numerous bills, a vote on the Supreme Court nominee will depend on Democratic unity since the party has such a narrow majority. </p>
<p id="5ierrl">All 50 members would need to back the nominee in order for them to advance if no Republicans vote in favor. So far, Democrats have stuck together on most of Biden’s appointees, with the exception of a handful of picks including former Office of Management and Budget nominee Neera Tanden, who Sen. Joe Manchin (D-WV) opposed. </p>
<p id="o0efwl">Any opposition from moderate Democratic lawmakers like Manchin and Sen. Kyrsten Sinema (D-AZ) to this Supreme Court pick could potentially derail the nominee, though this outcome seems unlikely given how united Democrats have been on Biden’s choices up to this point. </p>
<p id="dTeeTq">Last year, the Senate confirmed 40 of Biden’s judicial nominees, the most any recent president has seen in their first year. Those nominees brought more diversity to the bench, and included a number of women, people of color, and public defenders.</p>
<p id="lgPL9P">Biden previously pledged to name the first Black woman to the Supreme Court, a promise that multiple lawmakers pushed for him to deliver on with this nomination. <a href="https://www.vox.com/22346420/supreme-court-breyer-retires-ketanji-brown-jackson-leondra-kruger-biden-pick">As Vox’s Ian Millhiser has reported</a>, one of the potential contenders is Judge Ketanji Brown Jackson, who was confirmed to the DC Circuit Court last year. Jackson was confirmed by a 53-44 majority at the time, a sign that she would likely have solid support if she were the Supreme Court nominee as well. </p>
<p id="QREtVi">Senators would ideally be able to advance a Supreme Court confirmation while also working on legislative priorities like the Build Back Better Act. But it’s likely that the confirmation process will delay action on bills because of how much of senators’ time and focus it will draw. As was the case with Trump’s impeachment trial in January 2021, expect lawmakers to say they’ll be able to “walk and chew gum at the same time.” In reality, however, there will probably be trade-offs,<strong> </strong>especially given that lawmakers are likely to make getting a new Democratic nominee onto the Supreme Court a main priority.<strong> </strong></p>
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https://www.vox.com/2022/1/26/22902786/justice-stephen-breyer-senate-confirmation-amy-coney-barrettLi Zhou2022-01-26T13:50:00-05:002022-01-26T13:50:00-05:00Stephen Breyer’s retirement puts the spotlight on Joe Manchin — again
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<img alt="Senator Joe Manchin of West Virginia." src="https://cdn.vox-cdn.com/thumbor/6DQCMucy21zRKzkVQoeKXXYErK8=/0x0:5333x4000/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70435645/GettyImages_1362747808.0.jpg" />
<figcaption>Sen. Joe Manchin (D-WV) speaks to reporters outside of his office on Capitol Hill on January 4, 2022, in Washington, DC. | Anna Moneymaker/Getty</figcaption>
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<p>The West Virginia senator has become even more important.</p> <p id="MJlHqa">As furious as Democrats might be at Sen. Joe Manchin (D-WV), they really do still need him.</p>
<p id="R6DTD2">Justice Stephen Breyer’s <a href="https://www.vox.com/22262764/stephen-breyer-supreme-court-justice-abortion-biden">reported decision</a> to retire from the Supreme Court sets up a high-stakes Senate confirmation battle to succeed him. And Democrats’ bare 50 vote majority in the chamber means they’ll have to go back, hat in hand, to Manchin.</p>
<p id="m82Yka">The West Virginia Democrat delivered two blows to President Biden’s agenda recently, pulling out of negotiations over the Build Back Better Act, and voting against a Senate rules change to advance voting rights legislation. Recriminations have been fast and furious, with much of the party’s base united in loathing against Manchin, and <a href="https://www.politico.com/newsletters/playbook/2022/01/25/schumer-strategy-leaves-some-dems-seething-00001704">others</a> <a href="https://www.vox.com/2021/12/19/22845122/manchin-build-back-better-psaki">wondering</a> if party leaders mishandled their relationship with this pivotal politician.</p>
<p id="HPS2HB">His colleague, Sen. Kyrsten Sinema (D-AZ), was also driving a hard bargain on Build Back Better, and joined Manchin in voting against the rules change. But Manchin, who represents a state Trump won by 39 percentage points in 2020, is generally viewed as the tougher vote to get. And his relationship with the White House <a href="https://www.washingtonpost.com/politics/klain-one-year-troubles/2022/01/25/1fc428d8-799f-11ec-9102-d65488c31bb1_story.html">has reportedly soured</a> — Manchin <a href="https://www.reuters.com/world/us/manchin-says-white-house-staff-drove-him-reject-bidens-social-policy-plan-2021-12-20/">has said</a> staffers there did “inexcusable” things during negotiations. So some repair work needs to be done.</p>
<p id="a81YLj">But Democrats are optimistic. Manchin has voted for every lower court judge Biden has nominated so far, including now-DC circuit court judge Ketanji Brown Jackson, who is <a href="https://www.vox.com/22346420/supreme-court-breyer-retires-ketanji-brown-jackson-leondra-kruger-biden-pick">often mentioned</a> as a possible choice for Breyer’s seat. Manchin also voted for two of Trump’s three Supreme Court nominees — Neil Gorsuch and Brett Kavanaugh — so he can argue he is simply being bipartisan by supporting Biden’s pick as well. (Manchin voted against Amy Coney Barrett, but <a href="https://www.manchin.senate.gov/newsroom/press-releases/manchin-votes-against-supreme-court-nominee-process">said that was</a> because of the rushed process of her nomination.)</p>
<p id="U7CIrA">They likely won’t get a clear answer anytime soon. Manchin’s typical practice is to wait until very late to announce his voting intention on controversial bills or nominees. (Infamously, he waited to announce his support of Kavanaugh until <a href="https://www.vox.com/2018/10/5/17939302/brett-kavanaugh-vote-joe-manchin">just minutes after</a> Kavanaugh locked down the Republican votes he needed to be assured of confirmation.) </p>
<p id="hcDFeY">It’s also not certain that Manchin’s vote will be necessary to confirm Biden’s nominee. Supreme Court confirmation votes have become more polarized by partisanship in recent decades, but Sen. Susan Collins (R-ME) voted to confirm both of Barack Obama’s Supreme Court nominees who made it to the floor. Importantly, the stakes are not so high in this case compared to recent vacancies — conservatives have a 6-3 majority on the Court, and this nominee would merely be replacing one of the three liberals with another. So if Biden’s nominee isn’t so controversial, some Republicans could well be on board.</p>
<p id="nbqCNU">But if controversy does embroil Biden’s nominee — something that conservative politicians and media outlets will surely try to bring about — he probably won’t be able to rely on Republican votes for a rescue. In that circumstance, the best would be getting 50 votes from his own party, and that means getting Joe Manchin. So prepare for some diplomacy.</p>
https://www.vox.com/22902860/stephen-breyer-retires-joe-manchin-voteAndrew Prokop