Don’t Breyer Because It’s Over, Smile Because It Happened | Crooked Media
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January 27, 2022
What A Day
Don’t Breyer Because It’s Over, Smile Because It Happened

In This Episode

  • The 83-year-old Justice Stephen Breyer intends to retire at the end of this Supreme Court term in June, according to multiple reports yesterday. The oldest justice on the court, Breyer has been under enormous pressure to retire while Democrats have the slimmest control of the Senate. Leah Litman, a law professor at the University of Michigan and co-host of the podcast Strict Scrutiny, joins us to discuss what comes next.
  • And in headlines: San Jose passed the first U.S. law requiring gun owners to carry liability insurance and pay an annual fee, France’s National Assembly voted unanimously to ban ‘conversion therapy,’ and a rogue SpaceX rocket is expected to crash into the Moon.

 

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Transcript

 

Gideon Resnick: It’s Thursday, January 26th. I’m Gideon Resnick.

 

Tre’vell Anderson: And I’m Tre’vell Anderson, and this is What A Day, the official meeting spot for people mourning the end of Amy Schneider’s historic run on Jeopardy.

 

Gideon Resnick: Yeah, she had 40 consecutive wins. She was number two for the longest streak ever.

 

Tre’vell Anderson: It’s OK. Don’t be disappointed, sis.

 

Gideon Resnick: It’s still like well over a million dollars. Think about that. That’s pretty nice.

 

Tre’vell Anderson: I mean she’s got good money. OK? She [unclear].

 

Gideon Resnick: On today’s show, France bans so-called conversion therapy. Plus, a rogue rocket from SpaceX is on a collision course with the Moon.

 

Tre’vell Anderson: But first, the 83-year old Justice Stephen Breyer, intends to retire at the end of this Supreme Court term in June, according to multiple reports, yesterday. The oldest justice on the court, Breyer, has been under enormous pressure to retire while Democrats have the slimmest control of the Senate. While Breyer’s replacement would not change the makeup of the 6-3 conservative supermajority on the court, it could impact the court’s future. Biden’s nominee would likely be younger than the other two liberals on the Court, Elena Kagan and Sonia Sotomayor.

 

Gideon Resnick: Yeah, and Breyer’s planned retirement also opens the door to some history being made on the court as President Biden pledged to nominate a Black woman as his first pick way back in 2020 while he was still on the campaign trail. Two of the names that have come up in recent reports are Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit, and Justice Leandra Kruger of the California Supreme Court. Now, even before an official retirement announcement, let alone the name of a nominee, there is some reporting that Senate Democrats are eager to get the confirmation process going immediately, and they are able to confirm the eventual nominee with a simple majority thanks to Republicans using the nuclear option in 2017. That is when they lowered the threshold to confirm a Supreme Court justice so they could appoint Justice Neil Gorsuch.

 

Tre’vell Anderson: For more on all of this and what comes next, we have with us again today Leah Litman. She is a law professor at the University of Michigan and a host of the podcast Strict Scrutiny, which covers all things Supreme Court. Leah, welcome back to WAD.

 

Leah Litman: Thanks so much for having me.

 

Tre’vell Anderson: All right. So there has been a lot of talk about Justice Breyer retiring. He is 83-years young and has faced a lot of pressure to step down. Why now?

 

Leah Litman: I think it’s difficult to know exactly what is motivating him, but one thing I would put on the table is just the utter doom and destruction that has been emanating from the Supreme Court over the last year. Specifically, Justice Breyer has watched the justice that replaced his good friend, Justice Ruth Bader Ginsburg, who was selected by a Republican president, destroy many of the values and legal principles that Justice Ruth Bader Ginsburg held most dear. Justice Ruth Bader Ginsburg has written about women’s ability to decide to have an abortion. Well, who is she replaced by? Justice Amy Coney Barrett, who opposes abortion, and after she is installed on the Supreme Court, the Supreme Court allows Texas to enforce a law that has nullified the right to an abortion for people in that state. And so Justice Breyer looked around, he sees what the justices appointed by modern-day Republican presidents do, and I think he doesn’t want to be Justice Ruth Bader Ginsburg. He doesn’t want to be replaced by someone who was going to demolish everything that he believes in.

 

Gideon Resnick: Yeah. And you’re kind of getting at this, but I’m curious if you’ve engaged much with the thought of what the implications would have been if he did wait longer and not do what everyone on Twitter has been urging him to do for a little while.

 

Leah Litman: We are already living in a world with a 6-3 conservative super majority court, and so they can already do basically everything they want to. I think the difference between a 6-3 and a 7-2 supermajority conservative court is more about the future of the court than its present. Namely, a 7-2 conservative supermajority would be harder for Democrats to eventually be able to replace and eventually be able to appoint a majority of justices than a 6-3 conservative supermajority court, which is already going to be quite prohibitively difficult for Democrats to ever, you know, retain control of the Supreme Court for the next several decades, absent some major structural reform of the court.

 

Tre’vell Anderson: So now, timeline wise, when can we expect a new justice on the court?

 

Leah Litman: As soon as the President nominates and the Senate confirms a new justice after the term ends, then Justice Breyer would retire and that justice would replace him. Now it’s possible that the Senate could hold hearings on a president’s nominee before the end of the term and confirm a justice and just wait to swear them in, you know, until the term ends. So that’s one possibility. But my guess is the Senate will want to get it done rather quickly and very expeditiously around or immediately after the end of this term, which will be the end of June, beginning of July.

 

Gideon Resnick: Got it. And we’re definitely getting way, way ahead of ourselves here but Democrats can seat the justice with just 50 votes, plus Vice President Harris as the tiebreaker there. But is there a reasonable expectation at this point that all Democrats would support Biden’s eventual nominee.

 

Leah Litman: As to whether there is a chance that the President would select someone who a majority of Democrats or all of the Democrats wouldn’t support? I think that’s very unlikely. I mean, the president thus far has selected nominees who the Democratic Senate seem very content with. At least one of the prospective nominees to the Supreme Court is a judge who President Biden nominated and the Senate confirmed to the U.S. Court of Appeals for the D.C. Circuit. Judge Ketanji Brown Jackson. And she received not only all of the votes of the Democratic senators, but actually a few Republican senators as well. So if they’re looking for an easy confirmation, they might go with a person who they just confirmed with a majority of votes in the Senate.

 

Gideon Resnick: Right. I’m curious also, given the dynamics of the Senate, how could Republicans possibly impact the confirmation process if they were going to try to gum up the works?

 

Leah Litman: You know, they will throw temper tantrums in the press. There are already statements being made by conservative commentators about how we are getting close to an election, the midterms, and so, you know—

 

Gideon Resnick: Sure.

 

Leah Litman: We’ve heard this song and dance before, haven’t we? We know how this one plays out. But you know, the fact is they don’t control the Senate chamber, and there are already rules in place that allow a Supreme Court justice to be confirmed by a simple majority of votes. The filibuster does not apply to nominees to the Supreme Court, but I don’t really think there’s a lot they can do.

 

Tre’vell Anderson: Now, is there any idea how all of this discourse could impact any of the cases that the Supreme Court has already decided that they’re going to take up this next term?

 

Leah Litman: It’s unlikely that this will affect any of the cases that the court has agreed to hear for the term that will end in June or July. Now, the Supreme Court did recently decide to hear some huge blockbuster cases for next term, the term that will begin in October 2022. One of those big cases is about race-conscious remedies for past racial discrimination. As to whether Justice Breyer’s absence could affect that decision, I think it is unlikely. Again, the Conservatives have a supermajority on the court, but I do think there would be considerable power and considerable virtue in having the first Black woman to serve on the Supreme Court, to be in the room and on the court when that decision is made and when the court hears that argument. President Biden, of course, has promised to nominate a Black woman to the Supreme Court if he has the opportunity to fill a vacancy. So I think that that possibility could affect the case in a broader or general sense, even if it doesn’t necessarily affect the outcome that we expect.

 

Gideon Resnick: Right.

 

Tre’vell Anderson: And do we have a sense that like he’s actually going to make good on that promise? You mentioned a couple, you know, Black women names earlier in the conversation.

 

Leah Litman: I don’t see any reason why he wouldn’t. This is a promise he made. It is a promise he has reiterated, and it is a promise he has kept with respect to his nominees on the Court of Appeals. So this is an issue that is clearly something that matters to him and his administration, and I don’t really expect them to depart from that when it comes to the Supreme Court.

 

Gideon Resnick: Got it.

 

Tre’vell Anderson: So say Breyer gets replaced and we’re still stuck with a conservative supermajority in the court, do you see this impacting the campaign by some progressives to pack or expand the courts?

 

Leah Litman: I don’t necessarily see replacing Justice Breyer with another justice selected by a Democratic president affecting the campaign to reform the courts one way or another. I think what is more likely to affect that campaign is what the 6-3 conservative supermajority does. If they are going to steamroll through and destroy Roe versus Wade and soon after that destroy, you know, the Environmental Protection Agency’s ability to address climate change, they will themselves be making the case for court reform, and I don’t know that anything Justice Breyer does by retiring or the Senate does by confirming a successor to him, will end up mattering that much.

 

Gideon Resnick: Right. They they’ve certainly made that case for themselves so far. What are some of your takeaways from Breyer’s tenure? I mean, a lot of the discussion more recently has been about this notion that he sort of maybe needlessly sought compromise, the view that the Supreme Court was apolitical. What are your thoughts?

 

Leah Litman: I would just say that Justice Breyer was confirmed and came of age during a very different world than the one we are living in now. You know, he was selected in part as a judge because a Republican senator, you know, recommended him to the president. He worked in the Senate during an era of bipartisan compromise. That was his understanding about how American institutions worked. That is obviously no longer the world that we are living in. Maybe it took him a little bit, but he realized it. That capacity to evolve and update your views, you know, when you see things changing around you is a credit to anyone and a Supreme Court justice in particular. And it’s something he’s done, you know, on the death penalty, for example. He was a justice who, like justices who came before him, said, I’ve seen enough of this and I just don’t think the death penalty can be administered in a constitutional manner.

 

Gideon Resnick: Right. Well, you’ve given us a lot to think about. Leah Litman. Thank you so, so much again for joining us today on WAD.

 

Leah Litman: Of course my pleasure.

 

Gideon Resnick: There’s going to be a lot more that we’re gonna get into on all of this very soon, but that is the latest for now. We’ll be back after some ads.

 

[ad break]

 

Gideon Resnick: Let’s wrap up with some headlines.

 

[sung] Headlines.

 

Gideon Resnick: An update on Ukraine: Secretary of State Antony Blinken and NATO’s Secretary General Jens Stoltenberg announced in back-to-back press conferences that they had responded to Russia’s demands with written notices of their own. The letters to Russia, separate but mutually reinforcing, are said to reject Putin’s demands to roll back NATO’s presence in Eastern Europe, while offering a diplomatic counterproposals. While Blinken says they will keep the documents private to quote, “provide space for confidential talks” he emphasized that there were no concessions on key issues like NATO’s open door policy. According to Stoltenberg, NATO has formally invited Russia to meet to discuss the issues that were presented in the documents, but it’s unclear whether Moscow will accept. NATO allies have already deployed ships and military aircraft to reinforce Ukraine’s eastern border, while Blinken mentioned the 8,500 U.S. troops prepared to supplement the effort. Stoltenberg said quote, “while hoping for and working toward de-escalation, we are also prepared for the worst.” Don’t love that.

 

Tre’vell Anderson: At all. San Josie past the first U.S. law requiring gun owners to carry liability insurance and pay an annual fee. Late Tuesday night, its City Council overwhelmingly approved this measure in an effort to rein in gun violence. This law is meant to encourage people to have gun safes in their homes, install trigger locks, and take gun safety classes. The liability insurance would cover damages or losses from accidental use of firearms, including injury, death, or property damage. And gun owners will pay an estimated $25 annual fee per household, which would be put towards community groups who educate people on gun safety, suicide prevention, domestic violence, and mental health services. This law was first introduced in 2019 after a mass shooting at the Gilroy Garlic Festival that killed three people, and Mayor Sam Liccardo brought it back after another mass shooting in 2021 at a San Jose rail yard that left 10 people dead. But this new ordinance is expected to face opposition, of course. Gun owners who say this violates their Second Amendment right promise to fight back and sue the city.

 

Gideon Resnick: Mmm-hm. I bet. France has banned conversion therapy, a scientifically discredited practice that tries to change and LGBTQ person’s sexual orientation or gender identity, also known as bigot witchcraft. The National Assembly approved the ban unanimously on Tuesday, voting 142 to 0. People who are convicted under the new law will face criminal penalties of up to two years in prison and may have to pay a fine equivalent to $34,000. And the severity of the punishment can increase if the fake therapy is attempted on a young person or someone deemed vulnerable. The law also allows people to file a civil lawsuit on behalf of another person, which is a beneficial tool for someone afraid to report the situation themselves. In other updates that constitute the bare minimum for creating a compassionate world, yesterday, Pope Francis told parents to support their children who are gay. During his general audience address he talked about kids with different sexual orientations and told parents to quote, “Never condemn your children.” Now, still, according to a Vatican official doctrine, the church cannot support gay marriage and priests cannot bless same sex unions, so Catholic parents will have to tell their gay and lesbian kids that their love is OK, but it’s too far to celebrate it at a party with a bad deejay and little mini lobster rolls.

 

Tre’vell Anderson: They’re going to miss out on a whole lot of fabulous weddings, darling, OK?

 

Gideon Resnick: It’s true.

 

Tre’vell Anderson: In other news, Elon Musk finally found a creative way to get us to forget about that time he got a really bad haircut: multiple astronomers have confirmed that a rogue SpaceX rocket is expected to crash into the Moon sometime in early March—mission accomplished?

 

Gideon Resnick: Well.

 

Tre’vell Anderson: Maybe.

 

Gideon Resnick: Sure. An independent researcher in Maine realized something was wrong when his computer software could monitor the trajectory of the chaotic rocket past March 4th. Soon, he learned it was because the projectile had a date with destiny.

 

Gideon Resnick: Oh God.

 

Tre’vell Anderson: The SpaceX rocket, which launched from Cape Canaveral in February of 2015, was part of a mission to assist a space weather satellite on a million mile journey. The support rocket was meant to return to Earth, where it would burn up in the atmosphere, but lacked the fuel to escape the gravity of the Earth-Moon system, which instead pulled the rocket into a weird little orbit through space. While the rocket’s collision will likely form a crater on the moon’s surface, astronomers believe it’s actually no big deal for the Moon. They say the fresh crater could give a unique opportunity to scientists studying the properties of the moon’s surface—Though that does feel like a classic line from someone who works in academia and wants Elon Musk to like them so they can get a job at SpaceX.

 

Gideon Resnick: It’s kind of like a more minor version of looking at the Titanic and being like, That’s a great opportunity to learn about glaciers, you know? That’s really an interesting way that we could study it. Is there no other way?

 

Tre’vell Anderson: It’s the silver lining, Gideon. Come on.

 

Gideon Resnick: In the case of things hitting the Moon, I am more of a glass half empty type person, or a crater empty type of person, if you will. Good luck. And those are the headlines. That is all for today. If you’d like the show, make sure you subscribe, leave a review, crash straight into the moon, and tell your friends to listen.

 

Tre’vell Anderson: And if you’re into reading, and not just marginally woke Pope quotes like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Tre’vell Anderson.

 

Gideon Resnick: I’m Gideon Resnick.

 

[together] And you were robbed, Amy!

 

Gideon Resnick: Yeah, it was a tremendous run.

 

Tre’vell Anderson: I would hate to be the person who beat her right now.

 

Gideon Resnick: He did look upset, I will say. He looked like, shocked and upset, as was everyone. So, there’s that. What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, with writing support from Jocey Coffman, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.