The Media Today

Stephen Breyer, the coming fight, and the bigger picture

January 27, 2022
FILE - In this April 23, 2021, file photo, Supreme Court Associate Justice Stephen Breyer sits during a group photo at the Supreme Court in Washington. The Supreme Court is wrapping up its first all-virtual term, with decisions expected in a key case on voting rights and another involving information California requires charities to provide about donors. The court's last day of work Thursday, July 1, before its summer break also could include a retirement announcement, although the oldest of the justices, Breyer, has given no indication he intends to step down this year. (Erin Schaff/The New York Times via AP, Pool)

Last year, the liberal Supreme Court justice Stephen Breyer went on a media tour. Ostensibly, this was to promote his new book, The Authority of the Court and the Peril of Politics, but interviews were often dominated by questions about growing liberal calls for Breyer to retire—he is eighty-three, and Democrats may soon lose control over his replacement. Breyer’s publisher apparently circulated ground rules to his interviewers, insisting that he would not discuss his future. To the extent that he did, Breyer claimed that he hadn’t yet made a decision. Otherwise he was coy, often saying only that he didn’t plan to die on the court. (He told Stephen Colbert that he would “prefer not to die, period.”) At one point, CNN’s Joan Biskupic put it to Breyer that all the pressure “must drive you nuts a little bit.” He responded by invoking the First Amendment: “We have it there so people will say things that you might not like, I might not like.”

Yesterday, we learned that Breyer has now made a decision: he plans to step down from the court at the end of its current session, giving President Biden and the Democrat-controlled Senate the chance to fill his seat. Pete Williams broke the news on NBC shortly before midday, with the network cutting into regular programming to air his scoop; other major outlets quickly matched Williams’s reporting and dusted off their banner headlines. Progressive pundits who had used their media perches to call on Breyer to retire took something of a victory lap. “Finally some good news,” NBC’s Mehdi Hasan tweeted. “Well done Justice Breyer for listening.” Jay Willis of Balls and Strikes, a recently launched site that covers the legal system through a progressive lens, posted an article headlined “Stephen Breyer, Shamed by Your Tweets, Will Retire from Supreme Court.” The Twitter account “Did Stephen Breyer announce his retirement today?” finally got to proclaim that Stephen Breyer announced his retirement today.

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Major outlets’ lead stories about Breyer’s decision tended to emphasize similar threads, not least Biden’s promise, during a Democratic primary debate in 2020, to put the first Black woman on the Supreme Court. April Ryan, a White House correspondent for theGrio, quickly asked if Biden would stay true to his word; Jen Psaki, the White House press secretary, suggested at a briefing that he would, without getting into much detail. On MSNBC, Rachel Maddow and Lawrence O’Donnell respectively interviewed Symone Sanders, a campaign aide who advised Biden not to make the promise from the debate stage (but now says that he was right to do so), and Rep. Jim Clyburn, the South Carolina powerbroker who told Biden during an ad break that he needed to do it there and then, in what O’Donnell described as “a movie-worthy, dramatic backstage scene.” Over on CNN, Laura Coates stressed that the fact of Biden’s commitment isn’t the only thing that matters, emphasizing the “embarrassment of riches” among Black female jurists who “are available and frankly were available all along.”

Beyond reflections on the likely historic significance of Biden’s pick, speculation swelled as to who it would be, with Ketanji Brown Jackson, an appeals court judge in DC, emerging as an early favorite. Right-wing pundits floated the suggestion that Biden might pick Kamala Harris, his vice president, which, despite being implausible, quickly got an airing in the White House briefing room. (For one thing, Harris would presumably have to vote on her own nomination in the likely event of a deadlocked Senate; Insider’s Grace Panetta tried to figure out if this would even be possible and didn’t get very far.) Back in the real world, speculation swelled, too, as to the pick’s confirmation timetable and prospects, even though there isn’t one yet. Political reporters noted that Biden has a chance to notch a “win,” after a string of legislative setbacks.

Some aspects of this discussion (the importance of representation on the bench) were far more useful than others (the optics-driven language of wins and losses). There was some interesting coverage, too, of Breyer’s legacy, which often read like it had been on ice for a while. But curiously little coverage that I saw engaged as prominently as it could have with the wider context of this historic moment for the court, with many voters questioning its basic legitimacy, crucial decisions coming down without transparency, and the justices’ being increasingly at odds with one another in ways professional and personal (though they’ve often denied the latter charge). In 2020—after Mitch McConnell, then the Senate majority leader, reversed his own made-up precedent to confirm Justice Amy Coney Barrett, entrenching the conservative majority on the court right before an election—he supercharged a debate, in liberal and left-leaning media, as to whether the court was still fit for purpose, with proposals for reform (including the suggestion that Biden expand the bench and “pack” it with his own appointees) gaining newfound currency as matters of legitimate mainstream discussion, if never agreement.

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This debate has continued to play out, though now mostly on the op-ed pages and among experts. The wider news cycle has understandably moved on to other matters, and when its focus has sporadically returned to the court, court reform has not been its chief concern. There are very good reasons for this—the consequences of the court’s recent decisions, especially around abortion, have been immediate and non-hypothetical—but the debate also seems to have been short-circuited, to some extent, by the punditry around Breyer’s resignation, which was much lower-hanging fruit. This is a shame. There is a glaring need, right now, for the mainstream media to convene debates about the fundamental health of America’s existing democratic institutions—not because radical change is likely, but because the stakes are high. Lots of stories are jostling for our attention right now, but we could collectively make more room for this one.

The most interesting articles I read about Breyer’s retirement yesterday were those that tried to situate it within this broader context, such as the observation, by Slate’s Dahlia Lithwick, that “the justice for whom the notion of constitutional and judicial ‘hardball’ has always been anathema [ending] his Supreme Court career with the most hardball Supreme Court retirement in recent history speaks volumes about the current moment.” As Lithwick notes, Breyer has recently had a lot to say about this context—his book doubled as a warning against aggressive court reform and the notion that justices are “politicians in robes”; among other things, he has criticized the press for labeling justices as “liberals” or “conservatives.” Such thinking was a key theme of his interview round last year, though it often got buried as headline takeaways focused on the retirement speculation. That speculation being laid to rest would seem like the ideal moment to revive a high-level media conversation about the structure of the court, and the tenability of Breyer’s conception of it. We may end up hearing much more about Manchinema.

In September, David Ignatius, of the Washington Post, interviewed Breyer at a live event and brought up his plans, asking whether timing his retirement to coincide with Democratic control of the Senate wouldn’t reek of the same sort of politics that his book counsels against. Breyer responded by paraphrasing a famous quote from Joseph Conrad’s Heart of Darkness, about one’s “own reality—for yourself not for others” that “no other man can ever know”; roughly the same thing, Breyer said, was true of his decision. This morning, it’s the following sentence in Heart of Darkness that feels more apt: “They can only see the mere show, and never can tell what it really means.”

Below, more on Breyer and the court:

  • What’s next: Breyer has yet to publicly confirm his retirement, and Biden has refused to comment until he does so, telling reporters yesterday that he would let Breyer “make whatever statement he’s going to make and I’ll be happy to talk about it later.” According to numerous reports, Biden and Breyer will appear alongside each other at the White House later today, though as of last night, further details were not available. Per CNN, “Breyer conveyed to the White House last week that he planned to step down from the court, but he did not tell Biden directly. As of Tuesday, the White House had yet to formally receive a letter from Breyer making his intentions official, a source said.”
  • Context: Another piece that sought to situate Breyer’s retirement in a wider context was written by Jeffrey Rosen in The Atlantic. “Breyer’s constitutional vision as a justice—his commitment to temperance, flexibility, compromise, and restraint—had mixed success at the Supreme Court in the term that ended last June,” Rosen wrote, but this term has been a different story. “The ability of John Roberts’s Court to maintain its nonpartisan standing in future terms will depend on whether it continues to embrace the pragmatic moderation that Breyer practiced during his 27 years on the Supreme Court or whether it puts ideological purity above institutional legitimacy.”
  • Strikes: In October, Willis, of Balls and Strikes, appeared on CJR’s podcast, The Kicker, to discuss where he thinks Supreme Court reporting often falls short. “This is the most conservative court since the Great Depression; it’s on the verge of being able to roll back decades of progress and fundamentally reshape significant swaths not just of American law, but day-to-day American life,” Willis said. “I do not feel that this is being represented accurately in the media, which is mostly wrapping up term recaps the same way you might wrap up a spirited baseball game between two teams that tried real hard.”

Other notable stories:

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.