Justice Stephen Breyer to Retire

On today’s podcast, David and Sarah respond to all the questions about Justice Stephen Breyer’s ...

By and

On today’s podcast, David and Sarah respond to all the questions about Justice Stephen Breyer’s retirement and replacement. Who are the leading candidates? Why is all the talk about Justice Kamala Harris or Justice Michelle Obama a bunch of rubbish? Do we expect any real change in the philosophical composition of the court? They wind up with a discussion of seditious conspiracy and all the reasons why it’s tough to charge anyone with trying to overthrow the government.

Show Notes:

–Laurence Tribe: “No hiding behind Pence’s skirt on the Supreme Court nomination”

–Office of Legal Counsel Equal Rights Amendment memo

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  1. Avatar photocircle-angle-nib
    Sarah Isgur vertical-nib Author

    I think your fed soc comparison is super smart and I havent heard that point made before.

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    Devin Rice

    I would love an episode exploring liberal jurisprudence in general. I think I have a layman's understanding of the conservative side but not so much on what is going in on the other side if the aisle.

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    Christopher Hall

    Much has been said regarding President Biden’s choice to select a Black woman to succeed Stephen Breyer. Is this affirmative action? Will it diminish her standing as somehow lesser due to tokenism? Will this provide more diversity of thought on the court? No, no, and no.

    Announcing that Breyer’s successor would be a Black woman provides two advantages. The first, and most obvious, is that it was political. Trump, if you will remember, was lauded when he restrained all possible future nominees to a list of Federalist Society acolytes. Biden was simply doing something similar, though restraining his choice to an underrepresented group, rather than a narrow legal philosophy. With the announcement he also acknowledges that the court’s only power is in being seen as legitimate by the governed (a status that has been weakening for some time now).

    As far as the diminishment of the would-be justice, this, to me, seems rather silly. She won’t receive half a vote due to loss of confidence. The Supreme Court is one of the few arenas where one’s work speaks for itself. She will either draft impactful opinions, or she won’t. She will either develop influence among her colleagues, or she won’t. The fact that Biden narrowed his choices won’t make a difference. I doubt the as yet unknown justice is using her selection as a launch pad to bigger and better things.

    I also am dubious that the selection’s status as a Black woman will substantially influence her interpretation of the law. Much of this influence is likely to be fostered at law school. If history is any indictor she will be a graduate of either Harvard or Yale, so likely very little diversity of opinion will be presented.

    I certainly support the appointment of a Black woman to the court. It is embarrassing that it hasn’t happened yet. However, if it is real diversity of thought we are seeking it might be worth expanding the educational pedigree of the court. As it stands, eight of the current justices are graduates of one of two schools. In this regard, as a graduate of Notre Dame, the most heterodox member of the court is Amy Coney Barrett.

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    1. Mathew A

      The difference is that Biden is making a decision based on race. There's a term for that, it's called racism.

      Making a decision based on judicial philosophy is entirely legitimate

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        Christopher Hall

        Yet, no one actually thinks Biden is actually being racist in the decision. That is different than saying it's constitutional.

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  4. Karin

    The SCOTUS part of this podcast was not a good choice for my morning constitutional. In alternating violent agreement and vehement exasperation, I was muttering like a madwoman, and all the while my Airpods were hidden by my woolly headband.

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    Bill Dyer (aka Beldar)

    Regarding clerks: Thank you, Ms. Isgur, for confirming that "clerk families" look after one another, including in situations in which the joint expectations of judges and clerks regarding the clerks' employment are altered by such things as retirements and ascensions to higher benches.

    Hugh Hewitt, for example, described his D.C. Circuit clerkship thusly:

    ===begin quote===
    In June 1983, I arrived in Judge Roger Robb’s chambers to begin a clerkship on the U.S. Court of Appeals for the District of Columbia Circuit. But Robb had suffered a stroke. He was gone from chambers for many months. So Judges Robert Bork, Ruth Bader Ginsburg, Spottswood Robinson and Antonin Scalia got together and agreed to keep my co-clerk, Terry Ross, and me occupied. They each gave us multiple cases to research, brief and help with their opinions before Judge George MacKinnon returned from a long vacation and “adopted” us until his closest friend on the court, Robb, recovered and returned.

    For the summer and early fall of 1983, then, I got the most amazing clerkship ever: a shared time with five legal giants from across the spectrum of the law. And the nicest of these judges was Ginsburg, the sweetest — and smallest — big brain I have ever met.
    ===end quote===
    link: https://www.washingtonpost.com/opinions/2020/09/19/constitution-majority-are-all-gop-needs-fill-ginsburg-vacancy/

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    Bill Dyer (aka Beldar)

    The best thing I had to say for Justice Sotomayor's nomination was that she brought trial lawyering and trial judging experience to the SCOTUS bench that was peculiarly and woefully lacking. If there is an argument to be made that such experience has made her a more pragmatic Justice, however, or a more thoughtful predictor of how a SCOTUS precedent might affect trial court practice, I'm unaware of its particulars. To be fair, however: That sort of experience would presumably show up most of the time in blunders she prevented her fellow Justices from making, which is the sort of stuff that isn't directly known by anyone outside the nine people on the SCOTUS bench. So I continue to give her the benefit of the doubt on this subject (while being otherwise entirely unsurprised by her jurisprudence more generally). FWIW I would have voted to confirm both her and Justice Kagan, had I been a senator.

    I hasten to add: I'm not troubled that MOST of the SCOTUS didn't have direct experience as trial lawyers and trial judges before becoming appellate judges. Our Chief Justice was obliged to disclose as part of his lifetime CV that he'd never tried a jury case to a verdict. But given that he was, before his appointment to the D.C. Circuit, on anyone's short list of the three top SCOTUS advocates in the country (among his many other qualifications), a lack of trial experience didn't remotely serve to disqualify him.

    Nevertheless, trial lawyers who become trial judges tend to have a set of useful and unique skills and perspectives that are indeed useful on appellate benches. There are good reasons why for most of American history, our SCOTUS bench has had ample first-hand experience from the nation's trial courts.

    They can, and perhaps should, speak for themselves on this, but: I wonder if Mr. Shapiro and Mr. Goldberg were making an assumption that time spent as a federal district judge somehow is inferior as a credential to time spent as a federal circuit judge. It's an assumption I dispute, but it's a very common one.

    Judge Ketanji Brown Jackson's resume is a very, very strong one. That she was a Breyer clerk herself makes me wonder whether an informal assurance about the likelihood she'd be given strong and favorable consideration had already been given to Justice Breyer before he decided upon the timing of his resignation. If so, I'm entirely okay with that, too.

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  7. Tngraham

    Re. the discussion on Laurence Tribe, I think the key question is whether Tribe's extremely partisan interpretations of law in recent years are intellectually honest interpretations. While obviously not being able to prove it, I suspect they aren't. It's one thing to have bedrock views of long standing which affect your interpretation of the law. It's another entirely when you step into Giuliani-land and your interpretations are obviously subordinated to some political end or another. The Tribe of recent years seems closer to Giuliani-land than to respectable legal scholarship. And I doubt that's because his cognitive faculties are declining. On the contrary, I think it's what comes of pandering to a Twitter audience and constantly receiving positive feedback for doing so. I doubt he has forgotten what credible legal scholarship is all about (as opposed to tendentious special pleading); it just seems like he doesn't care any more.

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      Bill Dyer (aka Beldar)

      I would say instead — and it's my rank speculation, of course — that he cares TOO MUCH, to the point that it has both overcome his objective good judgment and blinded him to his resulting bad judgments.

      It would be hard for anyone with Larry Tribe's CV and career history to keep from getting drunk on his own train's fumes. But that he's failed to recognize and prevent that lowers my estimation of him.

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    Young Riprock

    I think the discussion on affirmative action in regard to private employers under Title VII undersold the permissibility of "reverse discrimination", analogizing it to Ricci v. DeStefano (where the City tossed out the promotion exam because not enough minorities qualified for promotion).

    That is generally not the framework of how lower courts view affirmative action under Title VII, they use Weber. And they interpret Weber to give wide latitude to impose affirmative action programs.

    Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e–2, 2000e–3. Title VII protects all Americans, including white men, from race-based employment discrimination. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Nevertheless, the Supreme Court has repeatedly interpreted Title VII to allow “race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” Weber, 443 U.S. at 204, 99 S.Ct. 2721; see also Johnson, 480 U.S. at 626, 107 S.Ct. 1442. The Supreme Court has approved of affirmative action plans “designed to ‘eliminate manifest imbalances in traditionally segregated job categories.’ ” Johnson, 480 U.S. at 628, 107 S.Ct. 1442 (quoting Weber, 443 U.S. at 197, 99 S.Ct. 2721).

    Shea v. Kerry, 961 F. Supp. 2d 17, 27 (D.D.C. 2013), aff'd, 796 F.3d 42 (D.C. Cir. 2015).

    While I'm sure Sarah is correct on how the current Supreme Court would decide the issue if presented today, the Court has not touched private employer affirmative action in 30 years.

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    Dave

    OK, gonna ask this question again: Sarah and David talk about email questions or comments they get — what’s their email address?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      We actually are going to start only taking questions from the comments section since yall are the paying subscribers. So this is the better place to be. But I do look at twitter DMs and if you respond to my newsletter, that goes to my inbox too.

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        Dave

        Cool. Thanks!

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    Julie from Texas

    Another excellent podcast episode! On the issue of diversity on the court, however, I can't believe that media, pundits, people, SOMEONE doesn't talk more about the lack of diversity regarding educational background. Specifically, law school:

    John Roberts – Harvard, Clarence Thomas – Yale, Sonia Sotomayor – Yale, Elena Kagan – Harvard, Samuel Alito – Yale, Brett Kavanaugh – Yale, Amy Coney Barrett – Notre Dame, Neil Gorsuch – Harvard

    But for Barrett, it would be an all Harvard/Yale court. And recent justices who left vacancies show this isn't a new issue:

    Breyer – Harvard, Ginsburg – Harvard, then Columbia, Scalia – Harvard, Kennedy – Harvard, Stevens – Northwestern University, Souter – Harvard.

    Now on to top two contenders everyone is talking about for Biden's pick. Where did they go to law school? Ketanji Brown Jackson got her law degree from Harvard, and Leondra Kruger attended Yale (Harvard undergrad).

    Does anyone else see a problem with two universities in the whole of the United States, no matter how good they are, being the primary training ground for future SCOTUS justices? There is no way that other law schools are not turning out excellent justices who deserve more opportunities to rise and to achieve the highest positions in our country, including the Supreme Court. But if it's all about hobnobbing with Yale and Harvard folks, that feels much more like an aristocracy than a merit-based democracy.

    P.S. No offense whatsoever to the fine podcast hosts here, who both attended Harvard. I'm not saying it isn't an excellent, qualifying experience, but rather that if we want diversity on the court, maybe we should put someone on who went to UVA or UT. (That's THE UT, David—University of Texas. ~grin~)

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      Bill Dyer (aka Beldar)

      You want to redress a case of inexplicable underrepresentation on the SCOTUS?

      Of the 17 Chief Justices and 133 Associate Justices to serve on the Supreme Court of the United States, ONLY ONE has been from Texas — Tom C. Clark, a Truman appointee who served from 1949 to 1967. Link: https://www.supremecourt.gov/about/members_text.aspx

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      Young Riprock

      Have you seen the crazy things that Harvard law professors say online? Attending Harvard law should be more disqualifying than qualifying at this point (with obvious exceptions for the hosts).

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      Seth Higgins

      I cannot agree more. This is one of the reasons I get so frustrated with diversity arguments. By simply defining what is considered diverse you exclude other aspects of life experience that could be considered diverse in other contexts. Debates such as this inevitably suggest *this* life experience is diverse and unique and noteworthy while *that* life experience...not so much. I'm a veteran. Been awhile since we've seen one of those on the court! But in this debate, that form of diversity isn't considered. To be fair, the veteran as diverse gets raised in other contexts, notable college admissions and Congressional campaigns.

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      Sarah Isgur vertical-nib Author

      I've been tweeting about that a lot today!!

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        Bill Dyer (aka Beldar)

        Some of us wouldn't know about that, though.

        Twitter delenda est.

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