The retirement of Stephen Breyer



Ian Millhiser of Vox provides an overview of Justice Breyer’s career in two branches of the federal government and notes that, at times, Breyer was an “invisible man” on the Supreme Court and preferred it that way.

Breyer spent most of his 27 years on the Supreme Court as part of a four-justice liberal minority, and his public profile was often overshadowed by that of his colleagues.

Ginsburg was the pop culture icon who, by virtue of her seniority, could assign herself the most politically charged dissenting opinions. Justice Sonia Sotomayor is the heir to liberal lions like Justices William Brennan and Thurgood Marshall, using her dissents to imagine a world where the law serves the most vulnerable. Justice Elena Kagan is the Court’s master negotiator, whose talent for convincing Chief Justice John Roberts to think like a moderate led angry conservatives to refer to the nation’s highest tribunal as the “Kagan Court.”

Breyer, to the extent that he has much of a reputation at all, is mostly known by Supreme Court watchers for asking long, rambling, hypothetical questions that sometimes stretch for an entire page of the Court’s official oral argument transcripts.

Yet if Breyer often seems invisible, that’s probably by design. “Credit is a weapon,” Breyer told Slate’s Dahlia Lithwick in a December 2020 interview. One of the two most important lessons he learned from Senator Kennedy, Breyer said, is that “you give the other person the credit” for a joint accomplishment, to make it more likely they’ll be able to find common ground with you.

Jennifer Rubin of the Washington Post says that the degree to which Justice Breyer’s retirement is being cheered by Democrats is an indicator that SCOTUS has squandered much of its credibility.

We know a Republican-controlled Senate would not confirm a Biden pick. We know Breyer could have stayed on the court longer if not for his concern that he would be replaced by a radical partisan, or that his seat would be left open until a GOP president and Senate could replace him.

It is also clear that a Biden pick is needed to defend fundamental constitutional rights, as the court’s six-member majority has a different agenda: imposition of an ideological (if not theological) agenda from the bench. And that the right-wing majority is impervious to reason and appeals to precedent. Instead, it has pre-decided every case of political import and will reach a conclusion pleasing to their political patrons.

More things we can be sure of: During the Senate confirmation hearings for Biden’s nominee, Republicans will speechify about critical race theory, hypocritically denounce judicial activism and insist the nominee’s failure to agree with their ideological position on guns or abortion or whatever is grounds for opposing their confirmation. Republicans, after confirming GOP presidents’ nominees who refused to give a straight answer to scores of questions, will also complain the nominee has been evasive and, therefore, should be disqualified. Maybe the nominee will get a few Republican votes. Maybe.

Tom Goldstein of SCOTUSblog discusses President Biden’s possible “bottom-line calculus” that might be utilized in selecting Justice Breyer’s replacement.

The president’s bottom-line calculus may reduce to the following. Jackson was recently confirmed by the Senate, making a Supreme Court confirmation process likely to go smoothly. Kruger has never faced Senate confirmation. That distinction matters because there is a good chance that Democrats will lose control of the Senate in a year — a timetable that would be important if the president’s nominee was substantially delayed or rejected. There is no known obstacle to Kruger being confirmed by a Democratic Senate, just the possibility of some unknown surprise. On the other hand, Kruger is six years younger than Jackson (45 versus 51) and is — in the view of some — even more dynamic and intellectually stronger.

If all other things are equal, the president is more likely to nominate Jackson. Although a little older, she still is quite young and has many years of service ahead of her. The near certainty of confirmation would outweigh the age gap. So the question will become: Are all other things equal? Or are the president and his team convinced that Kruger would make a substantially stronger justice because they are more impressed with her intellect, writing, and dynamism?

No one can know the answer to that question yet. By far, the most important player in the process will be White House Chief of Staff Ron Klain. He not only is Biden’s closest adviser in general, but the president will particularly look to Klain on this question, because Klain probably has been deeply involved in the confirmation process for more justices than any White House staffer ever. Klain was the counsel to the Senate Judiciary Committee, then ran the nominations process for the Clinton White House, then remained active in Supreme Court nominations as then-Vice President Biden’s chief of staff during the Obama administration. So he will have an exceptional sense of both what this president will want and the dynamic of any nomination in the Senate. Only the White House team knows who Klain thinks is the strongest nominee – Kruger, Jackson, or someone else – but it may be close to dispositive.

Anne-Marie Slaughter and Heather Hurlbut write for the Boston Globe on the effects that domestic political polarization has on American foreign policy.

A year after a sitting president tried to overturn the results of a fair and lawful election, the effort to identify and prosecute those responsible now must compete for attention with other security crises: Russian troops massing near Ukraine; Iran approaching the threshold of nuclear breakout; and humanitarian catastrophes in Afghanistan and Yemen. Faced with all this, American leaders will be tempted to draw a bright line between home and abroad. But doing so would be both risky and wrong.

America’s profound polarization reflects a society whose members no longer share a core understanding of what it means to be “secure.” Americans tend to have widely divergent experiences — across racial, religious, and gender lines — with US domestic security institutions. Trust in the US military and security forces used to be consistently high; now, it is falling, alongside trust in the rest of America’s government institutions. Americans no longer agree about who or what constitutes a threat, with Democrats much more likely to cite internal cohesion and political violence, and Republicans more concerned with traditional nation-state foes. Moreover, Americans are divided by ideology and age over whether people and ideas from elsewhere are an opportunity or a threat.

These divisions, and the resulting policy gridlock, would be bad enough in isolation. But the rest of the world is watching, and it sees a society that cannot agree on what democracy is. In the World Bank’s Combined Polity Score index, the United States has been downgraded from a longstanding score of 10, the highest for a democracy, to a 5, meaning it is on the verge of anocracy: a democracy with authoritarian characteristics.

David A. Graham of The Atlantic writes that the newly emerging (but not secret) plot to send phony Electoral College electors to the U.S. Congress could be the part of the plot to steal the 2020 presidential election that lands Trump insiders behind bars.

The phony electors were not a secret at the time. They met publicly and Trump-administration officials cheered them on in the press. But when their effort inevitably flopped, they were mostly forgotten, and attention moved on to other aspects of the assault on the election. Now, however, the phony electors have become a focus for the House January 6 committee, The Washington Post reports, and the Justice Department is also reviewing the scheme, a top official told CNN. Among the new revelations is just how closely Trump-campaign officials and the president’s loyal but bumbling consigliere Rudy Giuliani were enmeshed in the ploy. The Post reports: “The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.” To their credit, some Republican would-be electors refused to go along with the scheme.

The new information is important because it once again underscores that the most dangerous parts of Trump’s election-fraud operation were not the ill-conceived riots but the legal machinations before and on January 6, what I’ve called the “paperwork coup.” Tying the fake electors to the Trump campaign and figures like Giuliani could help rectify the uncomfortable dynamic in which foot soldiers have been prosecuted while kingpins remain unscathed.

The renewed attention to the phony electors also helps fill in the picture of how large the election-theft push was. On the surface, the whole maneuver looks like the province of a few wild-eyed figures: Trump, Eastman, Giuliani, the attorneys Jenna Ellis and Sidney Powell, Jeffrey Clark, and Mike Lindell. As more information emerges, though, the size of the front grows.

Leonard Pitts, Jr. of the Miami Herald writes that Sen. Mitch McConnell’s views on whether African Americans are really Americans aren’t as much of an outlier among white people as you might think.

But if you think McConnell is the only one who needs to be reminded that, as Black poet Langston Hughes once put it, “I, too, sing America,” you haven’t been paying attention. You missed Chuck Todd of NBC’s “Meet The Press” describing how “parents” are worried about critical race theory while “parents of color” might have a different view. You also missed CBS News’ tweet asking, “How young is too young to teach kids about race?” As if children of color don’t learn about race about the same time they learn about walking. Finally, you’ve missed all those news stories where reporters talk about “working-class voters,” “suburban moms” or “evangelicals” when they mean “white” — as if Black and brown people did not work, live outside the city or go to church.

Granted, this is not the bigotry of torches and hoods. No, this rhetorical decoupling of “African” and “American,” of Black people from normal human functions, represents “only” the bigotry of the implicit assumption, the things some people believe without consciously knowing they do — much less interrogating why they do. And yet, they do.

For them, white is the default position, the color of generic American-ness and, truth be told, generic human-ness. By contrast, Black and brown are the colors of exoticism, noteworthy only for how they diverge from, challenge or impinge the perceived norm.

Fabiola Santiago, also writing for the Miami Herald, calls the two (yes, two!) anti-LGBTQ bills making their way through the Florida state legislature “evil.”

Indeed, evil is the perfect adjective to describe this attempt to return to the dark ages of sexuality.

Under the guise of the name “Parental Rights in Education,” House Bill 1557 seeks to silence gay children, their teachers and education advocates by banning the discussion of sexuality and gender identification topics in Florida schools.

Introduced by Rep. Joe Harding, a Republican from the small town (pop. 3,000) of Williston in Levy County, the bill has passed in the GOP-led House Education and Employment Committee largely along party lines and, as of this writing, was in the Judiciary Committee.


This isn’t the only anti-LGBTQ bill making its way through the Legislature this session. House Bill 747 expanding doctors’ abilities to refuse to treat some patients also would lead to transgender discrimination.

It would impact people who have transitioned and are seeking healthcare, says Rep. Carlos Guillermo-Smith, Florida’s first openly LGBTQ Latino legislator.

Michael T. Osterholm and Mark Olshaker write for Foreign Affairs that we honestly do not know, at this point, how the world returns to “normalcy” from the COVID-19 pandemic.

The pandemic has revealed the messiness of how science evolves in real time. The last two years have witnessed a grand experiment of leadership practices, public health policies, and medical countermeasures. Despite the herculean efforts of the public health and medical communities, Omicron has now reached all parts of the globe. Although the percentage of serious and fatal cases among those infected will be relatively low compared with Delta, the far greater overall number of cases is overwhelming health-care systems, which are suffering the loss of ten to 30 percent or more of already overburdened and burned-out staffs. Breakthrough infections among vaccinated people are occurring at least five times as frequently as they did with Delta, and Omicron appears to infect children more than previous strains. The crush of patients has been so severe that in a number of U.S. states and countries around the world, health-care workers with mild cases of the disease have had to continue working through their illness.

But the long-term view of how societies return to a version of normalcy remains murkier. The evolution of COVID-19 has proved more difficult to predict than past pandemic diseases. The two virus-caused pandemics of the past century were influenza and AIDS. Influenza, like the SARS-CoV-2 virus that causes COVID-19, is a highly infectious respiratory-transmitted virus. However, over time, the most dangerous influenza strains evolved into more routine seasonal viruses on their own. Even with the devastating influenza pandemic of 1918 that left 675,000 dead in the United States and somewhere between 50 million and 100 million dead worldwide, the virus’s ability to kill and cause serious disease diminished until the flu turned into its milder seasonal variety; this process occurred without the benefit of vaccines.

Liz Szabo of Kaiser Health News writes that the Centers for Disease Control has reiterated that pharmacies should be administering a fourth COVID shot to some immunocompromised patients.

The CDC recommends one additional shot for the 7 million American adults whose weak immune systems make them more vulnerable to covid infection and death. This group includes people with medical conditions that impair their immune response to infection, as well as people who take immune-suppressing drugs because of organ transplants, cancer, or autoimmune diseases. Although people with obesity or diabetes are at high risk of developing severe disease or dying from covid, they’re not considered immunocompromised.

For other people ages 5 or older, the CDC recommends a primary vaccine series of two doses of mRNA vaccine. Adults also may receive the one-dose Johnson & Johnson vaccine, which the CDC says may be safer for people who have had a severe allergic reaction to an mRNA vaccine.


The CDC first recommended fourth shots for immunocompromised people in October. The agency has been working to educate pharmacists and other health providers since then, said CDC spokesperson Kristen Nordlund. Those efforts included a conference call with health officials from every state that had thousands of participants, as well as an additional call to physicians. The CDC has streamlined its website with booster advice several times. In its guidance to pharmacists, the CDC notes that patients don’t need to provide proof that they are immunocompromised.

Patrick Wintour of the Guardian reports that some cracks in the NATO alliance have begun to show as it concerns the Russian threat to Ukraine.

Every effort is being made to minimise the differences within the Nato alliance, including through regular calls such as the one led by Joe Biden on Monday, but they may be impossible to avoid since they reflect not just different short-term assessments on intelligence, but a deep fissure going back decades about what Germany and France, as opposed to the Anglosphere, regard as the best way to handle Russia.

France, looking at the same intelligence provided by the CIA, does not see an imminent invasion, or a gathering of forces equipped to invade in the next three weeks – an assessment shared by the best Ukrainian defence analysts.

In Britain, the foreign secretary, Liz Truss, has been openly critical of Germany for leaving itself so dependent on Russia for energy, and Berlin’s recent refusal to allow Estonia to send German-manufactured arms to Ukraine. The idea of Germany providing weapons to be used against Russia for the first time since the second world war is anathema. Speaking in Berlin on Tuesday, the German chancellor, Olaf Scholz, defended the decision, saying it was rooted “in the whole development of the past years and decades”.

Finally today, Alison Bosman of reports on a study that climate change will soon have “devastating effects” on crops like coffee, cashews, and avocados.

A new analysis, conducted by Roman Grüter and colleagues at Zurich University of Applied Sciences, combines the predictions of 14 different climate change models. Based on three different levels of greenhouse gas emissions, the team modeled the possible impacts on crop growing regions by 2050. The analysis investigates the impacts both on a global scale and on the scale of the individual countries that are currently major producers of these crops.

Previous research has predicted that most of the current areas in which coffee arabica (the dominant coffee species) is grown will become unsuitable as climate change progresses, but there have been no studies on the possible consequences for the production of cashew nuts or avocados. These are important crops for consumers all over the world, as well as for tropical small-scale farmers, and long-term planning for the establishment of plantations of these trees is essential.


The findings of this analysis suggest that most areas where coffee, cashews and avocados are currently grown will become unsuitable by 2050. Coffee turns out to be the most vulnerable of the three crops to climate change because of its sensitivity to increased temperature. Suitable coffee growing areas will decrease significantly in all of the major production regions, including Brazil, Vietnam, Indonesia, and Colombia.

Everyone have a great day!


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