Jan 27, 2022

Stephen Breyer retires.

Biden has made promises on who will replace him.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 10 minutes.

Stephen Breyer retires. Plus, a question about Tucker Carlson.

Justice Breyer speaking at Brookings. Photos by: Paul Morigi
Justice Breyer speaking at Brookings. Photos by: Paul Morigi


I'm going to be revisiting my re-visitation of the Critical Race Theory debate, with an update on what has been happening in schools since we last talked about it. This is a subscribers-only post, but you can get it in your inbox by becoming a Tangle member. Remember: We are ad-free, investor-free and 100% independent only because of Tangle members. In return, we give members premium content like our Friday editions.

Quick hits.

  1. The Justice Department filed charges against the man accused of selling a gun to the suspect who held hostages in a Texas synagogue. (The charges)
  2. 14.5 million people enrolled in the Affordable Care Act in 2021, 2 million more than expected. (The enrollment)
  3. A report on a series of parties held by British Prime Minister Boris Johnson — in violation of Covid-19 rules — is expected to be released as early as today. (The report)
  4. New Covid-19 cases in the U.S. are dropping, a sign that Omicron is finally burning out. But deaths continue to rise, and are now averaging more than 2,000 a day. (The details)
  5. The economy grew at 5.7% in 2021, the fastest one year clip since 1984. (The numbers)

Today's topic.

Stephen G. Breyer. Yesterday, news broke that the senior member of the Supreme Court's three-member liberal wing will retire. Breyer, who is 83, was appointed in 1994 by Bill Clinton and is the oldest member of the court. When Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, many progressives began urging Breyer to step down to ensure President Joe Biden would be able to select his replacement. Breyer's most consequential decisions on the bench involved holding up the Affordable Care Act, backing pro-choice rulings, and supporting the 2015 ruling to legalize same-sex marriage.

While news broke of Breyer's decision, the justice himself has still not acknowledged it and the White House has refused to comment on a potential replacement thus far. Justices are appointed for life, and Breyer is expected to serve out the remainder of his term, which would end in June or July. Given the 6-3 conservative majority on the court, a liberal replacement would not change the ideological makeup of the court.

Throughout his time on the bench, Breyer has been considered a moderate liberal. With the Senate split 50-50, questions are already arising about who Biden might nominate and who could earn the support of Democrats like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

If Biden waits until the midterms, it’s possible Democrats could lose their Senate majority, which means they will almost certainly move with an accelerated pace to replace him. During his campaign for president, Biden promised to appoint a Black woman to the Supreme Court, which has many people speculating his top two choices are: "Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit, who graduated from Harvard Law School and served as a law clerk to Justice Breyer, and Justice Leondra R. Kruger of the California Supreme Court, who graduated from Yale Law School and served as a law clerk to Justice John Paul Stevens," according to The New York Times.

Breyer's retirement also marks the first "result" from my post in December, when I published 19 predictions about the future of politics. #12 was "Stephen Breyer will retire from the Supreme Court before Biden leaves office." My confidence rating was an 8 out of 10. I'll do my best to continue to track these predictions as they unfold, but I'm happy to start 1 for 1!

Below, we're going to take a look at some reactions to the news. Then my take.

What the left is saying.

  • The left is relieved Breyer is retiring, and urges Biden to keep his promise.
  • Some hope Breyer's replacement is more progressive than he was.
  • Others say it is important that the bench have more diverse representation.

Matt Ford said the retirement was a "relief" and a "chance for progress."

"Breyer’s departure will not significantly alter the court’s ideological balance," Ford said. "With six conservative justices now on the bench, whoever Biden nominates will almost certainly be part of a three-justice liberal minority for the next 15 to 20 years. At the same time, his replacement with a much younger justice will help ensure that the court wouldn’t drift even further to the right due to a vacancy arising during a Republican presidency, as it did when Ruth Bader Ginsburg died in 2020, during Donald Trump’s presidency.

"Still, Biden’s pick will make history in other ways. On the campaign trail during the 2020 election, [Biden] pledged to appoint the first Black woman to the Supreme Court, a move aimed at shoring up his support among Black voters in South Carolina—which paid off," Ford wrote. "Biden, who appointed more judges in his first year than any president since JFK, has already made strides in increasing the diversity of the lower federal courts during his first year in office: As of this month, he had already nominated eight Black women to serve on the federal circuit courts of appeal.”

David Sirota said another Breyer on the court would be disastrous for the left.

"Though most of the Supreme Court discourse revolves around hot-button social issues, the high court is first and foremost big business’s cannon aimed squarely at the American worker and at the livable ecosystem that supports human life," Sirota said. "On one level, Breyer reportedly retiring is welcome news because it provides a rare opportunity for lawmakers other than Republicans to put someone on the court who doesn’t resemble a villain from The Handmaid's Tale. But with corporate America’s stranglehold on policy — from health care to labor to climate — it’s not enough to merely get an appointee who checks some important demographic boxes and isn’t a religious zealot.

"With so much of the court’s day-to-day work focused on corporate cases rather than on social policy, the moment calls not merely for some younger version of Breyer, who has pretended the court is not inherently rigged in favor of corporate power — even though it quite obviously is," Sirota wrote. "Instead, this moment begs for a jurist whose life experience and record shows a commitment to prioritizing American workers and the environment — and breaking with the most powerful lobbying group in America: The U.S. Chamber of Commerce.”

Maya Wiley said Biden needs to keep his promise.

"First, the choice of nomination should be all about the qualifications of the candidate. Black women on the federal bench are there because they are qualified. Period," she wrote. "In fact, it’s damn hard to get there, so we have to understand just how qualified they must be to overcome the challenges in nominations for such prestigious and coveted positions... It’s not just about political payback. It’s about diversity of experiences on the bench to ensure a robust set of perspectives and debate, and it matters. Remember that it was Justice Sandra Day O’Connor, the first woman appointed to the Supreme Court, a Ronald Reagan appointee, who penned the 1982 opinion in Hogan v. Mississippi, which struck down that state’s sex-segregated public nursing schools."

"And it was Justice Thurgood Marshall, the civil rights icon and first Black justice, whom O’Connor credited with educating her on the importance of the Black experience, leading her to pen her 2003 opinion upholding the University of Michigan’s affirmative action admissions program," Wiley added. "We need the experiences of the people who look like this country, and that has been sorely lacking on the bench."

What the right is saying.

  • The right said Biden made a mistake by guaranteeing he'd nominate a Black woman.
  • They hope Biden's nominee is not a "far-left" extremist.
  • Some urge Republicans to respect the process.

The National Review wished Breyer well, and said they wish they could be "equally cheery" about his potential replacement.

"Biden has unwisely limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman," the board said. "In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law.

"Unlike Donald Trump, Biden did not run on a named list of potential candidates, so he will then have to sell his nominee to the public," they added. "That nominee is almost certain to be a progressive who treats the written Constitution with contempt. Even if Democrats remain united enough to provide the votes to confirm such a nominee, Republicans should extract a political cost in the midterm Senate races for doing so. The last three cycles of Senate elections have shown that fidelity to the Constitution is a winning political issue for Senate Republicans... So let us have another national argument about whether the Supreme Court should follow the written Constitution or not. There is no reason to shy away from the fight."

In The Wall Street Journal, Jonathan Turley said Biden's criteria was "unnecessary."

"With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses," Turley wrote. "It also means Mr. Biden’s short list will be much shorter than usual. The three leading candidates are Justice Leondra Krueger of the California Supreme Court, U.S. Circuit Judge Ketanji Brown Jackson and U.S. District Judge Michelle Childs. These are all worthy candidates who could have been considered for any vacancy without declaring that they were qualified by virtue of filling a quota—an unfortunate implication for the ultimate nominee.

"Mr. Biden’s use of such threshold exclusions is neither unlawful nor judicially reviewable," he wrote. "Yet it’s also unnecessary. Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates and expressly pledge to apply what is by definition a discriminatory threshold criterion. It was a pledge meant to blunt criticism from other Democrats, including Sen. Kamala Harris, that he had opposed school busing and affirmative action early in his career."

In Fox News, Gregg Jarrett said the timing made sense.

"If Breyer was going to step away, it had to be soon," Jarrett wrote. "He is a highly intelligent man and a realist. He well knows there is a very good chance that in the coming midterm elections this year, Democrats will lose control of the Senate, which confirms Supreme Court justices. The upper body of Congress currently resides in a tie of 50-50, with the vice president casting the deciding vote as president of the Senate.

"When the last three conservative-oriented justices were nominated by President Trump, many Republicans insisted that the central question should always be whether the candidate is competent and qualified," Jarrett said. "Thus, as long as those two conditions are met by Biden in his selection of Breyer’s replacement, Republican senators would be wise to abide by their own stated standards and not oppose the nominee. They should take the high road and decline to retaliate in kind... There are several highly qualified people believed to be on the so-called 'shortlist' compiled by the White House."

My take.

I can almost hear the liberals exhaling!

Seriously, Breyer's previous ambiguity about his plans had a lot of folks on the left uneasy, and who could blame them? Despite her poor health and age, Ruth Bader Ginsburg stuck it out on the court until her death, late in Trump’s presidency — something many on the left feared would happen. The result was a three Justice Supreme Court bonanza for President Trump, unlike anything we'd seen in decades, and a conservative majority that will be enshrined for at least the next couple of decades.

Breyer's legacy is often described as one of practicality. I'm not a student of his time on the bench but it appears there's enough consensus there that I'd be silly to doubt it. What I admired and appreciated even more about him was his reputation for listening. Neal Katyal, who clerked for Breyer, underscored this in a beautiful tribute to him that resonated strongly with me. He wrote that Breyer had a "constitutional humility" and "didn't pretend" to know the answer to every question:

"We now live in a world of know-it-alls, catalyzed by a social media engine that brings these forces together... The centrifuge extracts a tribal purity, where if you believe one thing you must necessarily believe 10 others, and those 10 lead you down another 10, and so on. Instead of learning from those outside this closed universe, you have to stay in it or face attack. And within it, because everyone is egging each other on, facts start to lose their salience. Instead, passion and purity become the new currency. Enter Breyer. His life’s work stands as a counterpoint to this: that one can hold strong views, and yet retain nuance and the capacity to listen and learn from one another."

Biden's pledge to pick a Black woman to replace Breyer is, predictably, drawing some criticism. It doesn't really bother me: Biden's critical base was always Black voters, and he wanted to make a promise that he would bring diversity and representation to government spaces that clearly lacked it. There are a half dozen supremely qualified Black women for the court, and he won't have a hard time finding a replacement. My biggest regret is for the nominee, whoever she will be, who will have to face the inevitable questions about her qualifications because her nomination was born out of a short list of race and gender parameters.

Regardless, I wouldn't expect too many fireworks. Republicans abolished the filibuster for Supreme Court justices, stonewalled Merrick Garland for eight months, replaced him with Justice Neil Gorsuch, then confirmed Amy Coney Barrett in a matter of weeks after the death of Ruth Bader Ginsburg. Their hypocrisy on the matter was well-documented, and I doubt they'll do much to stand in the way now — there is no point. Their majority will be intact, though this obviously sets Democrats up to bring balance back to the court in the future (most of the nominees Biden is considering are in their 40s or 50s).

With any luck, we'll get a nomination process of civility and decency. I wouldn't hold my breath, but at least we can hope.

Your questions, answered.

Q: At what point would you consider Tucker Carlson's rhetoric to have crossed the line into being treasonous? He's always gleefully peddled dangerous misinformation, but he's becoming a mouthpiece [for] foreign actors who are expertly and surgically worsening the divide in this country.

— Josh, Torrington, Connecticut

Tangle: "Treasonous" is a really big word. "Involving or guilty of the crime of betraying one's country," something that is punishable by death (or a minimum of five years in prison). I don't think Tucker Carlson is treasonous.

In fact, there are moments when I watch Carlson's show and find myself nodding along. Those nods usually turn into head shakes and disappointment when he brings his fiery monologs home, typically in a way meant to evoke fear and hatred toward fellow Americans, but I think he's often right about his anti-interventionism and the anger some Americans are feeling about how the corporate political class has left them behind.

As I said on Tuesday, the thing about Carlson that I loathe is the sleight of hand he plays in order to bring people into his position. I don't think he is an honest intellectual; he is one of the worst of the partisans out there, and he thrives on precisely the model of sensationalism in television news that I despise (which is part of why I started Tangle). He's also got a lengthy track record of saying racist things about foreigners and seems keen on becoming the face of white grievance. I don't think he's someone to look up to, even if his commentary occasionally resonates with me.

But treason? No. I think Carlson is loyal to the United States and the version of the U.S. he wants to see. I think he believes, every night, that he's acting in a way that will help America and Americans — particularly when he insists on not getting involved in other nations' battles. I just think his logic to get there can often be misleading and even, sometimes, dangerous.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.

A story that matters.

Fox News is reporting on a video purporting to show many adult, male, single migrants who are being transported and released across the U.S. Some contend the video shows a mix of minors and women. The video, shot on August 13, 2021, is animating criticism of Biden's immigration debate in conservative circles, though it has received little attention in some major media outlets. The footage was obtained via a Freedom of Information Act request by former Westchester County Executive Rob Astorino, and includes interviews with contractors explaining an effort to keep it quiet that they are helping transport migrants from border states to Westchester, New York. The video is currently on the homepages of Fox News, The New York Post and other popular right-leaning news outlets, driving a huge amount of social media engagement and calls for Biden to reform his immigration policies. You can expect this story to drive some conversation in the weeks ahead.


  • 285. The number of days until the 2022 midterm elections.
  • 70. The average number of days between a vacated Supreme Court seat and a nomination for a replacement.
  • 42. The previous average number of days between a vacated Supreme Court seat and a nomination for a replacement, before the blocking of Merrick Garland's nomination.
  • 27. The number of days it took for Amy Coney Barrett to be nominated and confirmed after the death of Ruth Bader Ginsburg.
  • 99. The number of days it took from Clarence Thomas's nomination to his confirmation, the longest in recent U.S. history.

Have a nice day.

After the Kansas City Chiefs defeated the Buffalo Bills in an NFL playoff game, their fans wanted to honor the team’s miraculous 13-second game tying drive with $13 donations to star quarterback Patrick Mahomes' charity. But as the idea began percolating online, Chiefs fans got wind of a tradition that Buffalo fans participate in: Donating to opposing teams' charities of choice. So instead of donating to their quarterback's charity, Chiefs fans began dumping money into a Buffalo hospital. Donations had totaled $255,017, and were still increasing, as of Wednesday afternoon. ESPN has the awesome story.

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