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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.
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:
- Earlier this week, the singer Neil Young demanded that Spotify remove his music from its library in protest of vaccine misinformation on Joe Rogan’s wildly popular Spotify podcast: “They can have Rogan or Young,” the latter wrote in an open letter to his record label. “Not both.” Yesterday, the Wall Street Journal’s Anne Steele scooped that Spotify was complying with Young’s demand. Spotify quickly confirmed Steele’s reporting.
- YouTube permanently booted the right-wing pundit Dan Bongino after he continued to post videos in defiance of a ban for breaching the platform’s covid misinformation policies. Bongino had dared YouTube to ban him and says that he will now post videos primarily to Rumble—a YouTube competitor, in which Bongino is an investor, that’s popular on the far right. (Evan Osnos recently profiled Bongino for The New Yorker.)
- In media-jobs news, Jad Abumrad is stepping aside as host of Radiolab. Elsewhere, the Post promoted Matea Gold to national editor and named Philip Rucker as her deputy; among other responsibilities, they will help lead “a newsroom-wide effort focused on threats to American democracy.” And Axios reports that MSNBC will tap Stephanie Ruhle to take over the 11pm Eastern hour that was recently vacated by Brian Williams.
- John Koblin and Michael M. Grynbaum, of the Times, assess whether CNN+ will persuade people to pay for streaming news; this has long been a challenging proposition, but CNN is at least throwing resources at it, poaching a “tier of talent that had previously been hesitant to commit” to such a venture. (The pair also report that CNN tried to lure Gayle King to host its 9pm Eastern hour on cable, but she’s expected to stay at CBS.)
- The Grade asked a dozen education reporters how they’re staying safe covering schools amid the omicron surge. Several said that they’ve recently switched to wearing KN95 or N95 masks and are trying to test more regularly; Hannah Dellinger, of the Houston Chronicle, said that she’s taken to livestreaming packed school-board meetings from a perch just outside the room, allowing her to grab speakers as they leave.
- The Philadelphia Inquirer is planning to relocate to new offices with 60 percent less floor space than the paper’s current newsroom, with bosses anticipating that many employees will continue to work remotely even after the pandemic. According to the Inquirer’s Jacob Adelman, staffers will not have assigned workspace in the new offices, which will open next year and save the paper about a million dollars a year in costs.
- Journalists in France pushed back after the public radio station France Inter uploaded a cutesy interview with the far-right presidential candidate Marine Le Pen, including a question about her first cat, to social media. Some felt that the video sanitized the far right; others suggested that the format itself was the problem, veering too close to celebrity journalism. (Other candidates have been invited to record similar videos.)
- On Tuesday, journalists and their supporters demonstrated in cities across Mexico to protest the regular murders of reporters in the country; three Mexican journalists have been killed already this year, two of them in Tijuana. In Mexico City, photojournalists laid their cameras on the ground outside the presidential palace, while photos of murdered journalists were projected onto the facade of the Interior Department building.
- And Nicholas Carlson, Insider’s editor in chief, urged people to respond to an Insider project focused on pay transparency—then refused to disclose what he earns when asked. “This feels a little wimpy, but also prudent,” he wrote, before adding that he might share his salary with a third party that will “keep it anonymous and average it with other people in roles like mine.” (Insider’s project will anonymize the responses it receives.)
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