Exit Stephen Breyer
Enter Ketanji Brown Jackson. But first, a pivotal ruling for the environment and (possibly) administrative power. And: A pro-life Biden judicial nominee?
The Supreme Court is yet to decide two cases — two of the six cases of the term highlighted by many court-watchers as the biggest cases of the term. They are West Virginia v. EPA and Biden v. Texas. As I wrote previously:
West Virginia is about regulation of greenhouse gases under the Clean Air Act, and the Texas case is about the Biden administration’s decision to end the “Remain in Mexico” Trump administration policy. The decisions will have direct effects on the environment and immigration, but they also could change government — altering the way presidents and their administrations interact with states, Congress, courts, and the policies of past presidents.
The court announced on Wednesday that “all remaining opinions ready during this Term” would be announced on Thursday. So, unless the court holds over one of the cases for next term — for re-argument, for example — we should get decisions in both cases on Thursday.
END OF AN ERA: On Wednesday, Justice Stephen Breyer — who announced his coming retirement in January so that his successor could be named and confirmed — told President Biden that he formally, actually, really will be retiring at noon Thursday.
After more than 41 years as a federal appellate judge — nearly 30 of them on the Supreme Court — Breyer is hanging up his robe1 after the court issues its final opinions of the term on Thursday.
The court is not handing down its decisions in person this term, despite having held in-person oral arguments all term, so he will not be taking the bench one last time.
He will, instead, simply be on the court at one moment and then, at noon, not.
With his exit, there is much to be said about his commitment and service to this nation. And many will do so.
At the same time, though, his retirement does mean there will be one less justice living in the past.
Breyer’s most recent book, published this past September, “appears, at times, to have been written in a different era than the one in which we live,” I wrote previously. His central claim that the court is, for the most part, an apolitical body has never been true — but the book appeared particularly out of touch being published as the court took on its most partisan period in generations. It was published, in fact, just weeks after the court signaled the coming end of Roe v. Wade by allowing Texas’s SB 8 six-week abortion ban, with its vigilante enforcement mechanism, to go into effect. (A few days after SB 8 went into effect, Breyer sat down for a Fox News interview about the book.)
It is time for a new justice — ready to face today’s realities — to take his place.
ENTER JUSTICE JACKSON: Judge Ketanji Brown Jackson will be succeeding Breyer — becoming Justice Jackson, the first Black woman on the court. Jackson will be sworn in at noon, taking both oaths (what?) in a ceremony that will be livestreamed from the court.
More than 30 years Breyer’s junior, Jackson will come to the court from a very different vantage-point, including through her experience in life as a Black woman, through her younger age, and through her experience as a public defender in the criminal legal system.
She becomes a justice as questions about the future of democracy and our institutions’ ability to sustain it persist.
She will be joining a court that has shown it is willing to overturn its own precedents with little or no justification beyond the five votes needed to do so.
She — along with Justices Sonia Sotomayor and Elena Kagan — will often be outnumbered.
But, she comes to the job not living in the Carter-era age when Breyer worked in the Senate but — having just gone through a heavily politicized, fact-free, attack-filled confirmation hearing — wholly in the present age, where most federally elected Republicans are split between supporting the former president’s ongoing threats to democracy or ignoring them.
PEOPLE ARE TALKING: On Wednesday, the Louisville Courier Journal made a splash with an important story — a tweet really, since, for most people, the story is paywalled — that raises more questions than it answers.
Declaring that “Biden backs anti-abortion Republican for Kentucky judgeship in apparent McConnell deal,” the paper goes on to report that the possible nominee is Chad Meredith. Meredith is a former top lawyer for both Republican former Kentucky Gov. Matt Bevin and Republican Kentucky Attorney General Daniel Cameron.
In 2020, Kentucky Right to Life, in a blog post, stated, “KRLA has been very impressed with Attorney Meredith’s abilities. He represented Kentuckians in numerous legal cases brought against the pro-life laws passed by our General Assembly during the Bevin administration.” Later, in a 2021 online forum, Meredith said that the Federalist Society is “one of my favorite organizations. Ever. I love everything the Federalist Society does.”
When it comes to the headline and judgeship, however, the actual story goes on to reveal that there’s no nomination at this point — despite the story repeatedly referring to “the nomination” and a section heading referring to him as “Nominee”; there’s no (on-the-record, at least) confirmation from Senate Minority Leader Mitch McConnell’s office or the Biden White House that such a nomination is coming (and there are no-comments from both); there’s no comment, let alone confirmation, from the alleged nominee-to-be; and there’s not even a vacancy for Meredith to fill at this point (a fact the story doesn’t mention until the ninth paragraph, in a quote from Democratic Kentucky Rep. John Yarmuth).
If the story of a coming Biden nomination of Meredith is true, it likely would cause a meltdown in Democratic politics. This is particularly so given that — nearly a week since the Supreme Court’s Dobbs decision — abortion supporters (within the party and otherwise) are still waiting to see what the Biden administration is actually going to do to protect abortion rights in the absence of constitutional protections.
What is true is that, in the past, judicial packages sometimes were agreed upon — primarily in states with two senators of the opposite party of the president — in order to get nominees through under “blue slip” rules that allow home-state senators to stop nominations from proceeding to a hearing. (If there were three vacancies, for example, the White House might choose two of the nominees and the home-state senators would choose the third.) During the Trump administration, however, Senate Republicans — Sen. Chuck Grassley, as chair of the Judiciary Committee, with support from McConnell) effectively ended the “blue slip” requirement for appellate nominations. Progressives have encouraged Biden and the Senate Democrats to do so for district court judges as well, but that has not happened.
The Courier Journal story states that the potential nomination “appears” to be part of a larger deal with McConnell on nominations — and makes a claim that it is “ostensibly in exchange for the Senate Minority Leader agreeing not to hold up future federal nominations by the Biden White House,” sourced to Yarmuth and unnamed “officials who confirmed the pending nomination.”
Outside of process changes, as this past month at the Supreme Court has shown, things are different, substantively, now than in the past as well. “Judicial packages” have always been a little difficult to explain; now, they can at least appear impossible to justify.
Given that Yarmuth is the only government official willing to talk on the record in the story, he appears to be the source — or at least a significant confirming source. Yarmuth is mad, telling the Courier Journal:
“Given that a judicial position isn’t currently open on the Eastern District Court, it’s clear that this is part of some larger deal on judicial nominations between the president and Mitch McConnell. … I strongly oppose this deal and Meredith being nominated for the position. The last thing we need is another extremist on the bench.”
It’s not clear at this time why he went to the paper with this quote — although it could suggest he went to the Biden administration and/or Senate leaders first, to no avail, and resorted to going to the press to try to stop the nomination from happening.
At the same time, it also should not be forgotten that McConnell is known to jump ahead of presidential appointments — announcing now-Sixth Circuit Judge Amul Thapar’s nomination before the Trump White House announced it in 2017.
We will be watching and digging into this in the days ahead.
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Breyer could still sit as a visiting judge on a lower court, as other retired justices — including Justices Sandra Day O’Connor and David Souter — did after leaving the Supreme Court.