9:51PM Aug 23, 2021
Oh yay. Oh yeah, this is good is talk a nonpartisan podcast about the supreme court for lawyers and non lawyers alike. Brought to you by SCOTUS blog. Welcome to SCOTUS talk. I'm Amy how the Supreme Court is in the middle of its summer recess. That doesn't mean there's no news related to the court. The justices continue to get emergency requests related to the covid 19 pandemic. And one of the highest profile stories of the summer came as it so often does from john Biskupic of CNN. Biskupic obtained an exclusive interview with justice Stephen Briar, who's been the focus of extensive speculation about when NFP will step down to allow President Biden to name his successor. Briar who turned 83 on August 15. Told Biskupic that he is not yet decided when he will retire. Joining us to talk about that interview and more is jumbies Kubik, CNN legal analyst and the author of four Supreme Court biographies on justices Sandra Day O'Connor, Antonin Scalia, Sonia Sotomayor and Chief Justice john roberts. Joan, welcome. Thanks so much for joining us.
Thank you, Amy. It's great to be here. And unlike our audience, I actually get to see right now during zoom, and it's so nice to just see a face these days, isn't it? It really is.
It really is. We haven't been at the court in a really long time. And it's it's not clear. I guess, when we're going to be back, I guess we'll know, eventually. But speaking of seeing people, we haven't seen any of the justices, as I said, in over a year. So before we get to the substance of your interview, how to how to Justice Breyer, look,
he looked healthy and energized. He was you know, as you know, I went up to New Hampshire to see him. And it's a beautiful setting up there, you know, amid the white pines and people much more relaxed in New Hampshire than they are down here in Washington, DC, even when the court is not in session. He was wearing sandals and khaki shorts and a loose, short sleeve shirt, you know, looking very casual. And I've always described him as a very youthful at something and now 83, as you say, and he had the usual spring in his step and good chair, so he actually looked good. I'm like you, I've wondered about the health and sanity and happiness of the other justices. And when we were in COVID, quarantines in 2020. I especially wondered about how, you know, for example, Justice Ginsburg was doing so you for the ones who have shake your your health or questions you you do wonder how they're holding up. But I have to say Justice Breyer looked good.
So speaking, yeah. Speaking of health, he said that two factors would be at the forefront of his decision about when and whether to retire health and the court. And so we've got a pretty good idea of what he means by health. But what do you think he meant when he said the court?
I think, institutional regard for the court, as we heard him back in April, when he gave his Harvard lecture, he spoke so much about public confidence in the court. the legitimacy of the court, and I think he has in his mind, what would be best for the court as an institution at this time, including at this very polarized political time.
Is he you know, kind of putting himself between a rock and a hard place. I mean, I there's this idea out there that he might not want to have stepped down after this past term, because it would look like he was acting politically, there's a democratic president, I was appointed by a democratic president airgo. I'm gonna step down now. But, you know, he saw what happened with justice Ruth Bader Ginsburg, who didn't step down during the Obama administration, even after people encouraged her to do that. You know, at some point, if he wants to step down and have a democratic president, replace him. It's like, it's still gonna be the same. And that's what other justices appointed by republican presidents. That's what anthony kennedy did. There was a republican president, President Trump was inaugurated and then he stepped down.
I think that's exactly right. Amy, and I think that, first of all, I do not doubt that he would like to leave while a democratic president is in office. He came in in 1994 through democrat President Bill Clinton's appointment, so I do believe he would leave. He will try to leave. While President Joe Biden is in office. Back in January, when the Georgia Senate seats went democratic. And suddenly we had this very slim Democratic majority in the Senate. I actually believe that Justice Breyer would be thinking of going sooner rather than later, because suddenly there was this Democratic majority, which would enable President Biden to to have greater flexibility and choice in a successor to Steven Briar. But what I discounted, and I know this is something that's in your mind, too, is the new responsibility has as the senior member of the left wing, and because of the death of Ruth Bader Ginsburg, last September, he has he has more authority, more responsibility. So I think, what was what's been going on Amy is that he's weighing many factors. He's held the institution of the court, but also sort of where he is, after 27 years of serving as a justice, he suddenly has this different kind of authority and wants to make use of it. Frankly, probably for at least one more term, and probably just for one more term, although he never said that to me outright. And I want to make that clear. That's just my my inference here.
So he did talk about enjoying his new seniority. That is one thing that he did say he enjoyed it. And for our listeners, who aren't as steeped in the the courts inner workings, can you first explain exactly what that means?
Sure. And and actually, it's it's not as obvious to people we all know that the Chief Justice john roberts, who is in the majority, more often than not, has the power to assign in opinions. But the, the leader of the liberal wing, if if he or she happens to command, a majority can assign the opinion, or more often than not assign the dissent for that side and try to control the voice of the dissent for that side. And so that's one new responsibility has but then also he in moving up in the seniority after Justice Ginsburg, passed away, he now speaks third. So he writes for the chief and Justice Clarence Thomas, who came on in 1991. Justice Breyer is the first liberal voice, the third voice of all nine around the table to try to influence the debate. And I remember back in 1994, when Harry Blackmun retired and john paul stevens got that new role, how energized he was by it. And then in 2010, when john paul stevens retired, Ruth Bader Ginsburg got that authority. And both of those prior justices were able to have it for several years. Here's justice Stephen Brier, who nearly set the record as a junior justice for 11 years, 11 years as a junior justice, I forget the assignment power, just just think of, you know, who gets who has to talk last in the seniority and who has to open the door when there's a knock on their private conference that was just as prior for 11 years plus, and he was very happy when Justice Alito came on in January of 2006. But so he you know, he is used to being second, third, fourth, fifth to many people. And for many years recently, he was second to Justice Ginsburg, in the seniority on the left. And that has changed. And not to throw too much information at our listeners, but that that's important. They they take seriously their assignment power, they take seriously how often they get to write opinions that speak for the court or speak for an important faction of the court. And he has gotten great satisfaction out of that role. And as you know, in the past term, not only did he was he in charge of assigning opinions when the left was in dissent, but Chief Justice john roberts turned to justice Brier more often than he had in the past. He had him write the the Affordable Care Act is decision. And Justice Breyer was crucial in bringing about compromises and in other cases to again, because he has this, this new seniority on the left.
And I suppose one other factor, this is the Paul Clement theory to throw into the Justice Briar multifactor balancing test of whether to stay or go. This is something that Paul Clement mentioned in a panel that we did in the spring, and it's not as obvious now that the justices are going to be back in person in the fall. But you know, Justice Breyer is a is a fairly gregarious kind of person, and he may not have wanted to go out, you know, in an all remote term, you know, to have another Have a termer. He's back on the bench, you know, meeting with his clerks in chambers and meeting with his with his colleagues. So,
but I think Go ahead. Yeah, no, go ahead. I was just gonna say I think the remote procedures that they've had to have. It's been hard on all of them. I think you know, newest justice Amy Coney Barrett certainly has not been able to, you know, partake in as many of the practices at the Supreme Court just because of the the teleconferences and the fact that many of our colleagues are still working from second homes.
I guess the flip side of Briar, you know, he talks about trying to downplay the role of politics on the court, it could be harder for him to try to reach across the ideological divide next time, and this is not going to be news to him. But they've already got abortion guns and public funding for religious schools on the docket. They could have affirmative action on the docket before they're through it. It could be we don't know how it's going to shape up in the end, it could be a pretty polarized term.
I think that's right. And I think Justice Breyer is an internal optimist. I think he actually believes that he can make a big difference, despite the odds, and the odds are as bad as they've ever been for him. This is the first time at least since he came on the court. And for many years before he came on the court, that the liberal side is down to just three justices. So you take those very polarizing subjects that you just mentioned, and you know, abortion rights right at the top of the list. And then you take the the slim hand that the liberals are holding, and it's it will be quite a challenge. And I think one of the greatest challenges is going to be in the abortion rights case from Mississippi, when it looks like they're, they're teeing up a case to, you know, remove the test of viability for when government can regulate a woman's choice to end a pregnancy.
And now, I may just be asking you to play armchair psychologist, you know, do you think there's a sense of you better for, for there to be for some of these cases, someone like me, who has all of this experience on the court and to have a new justice, who may have very similar ideological sort of bona fide days, but without the time and the experience building bridges on the court?
I would suspect that that more senior justices believed that, I think it's it's an easy thing to believe, you know, just because they know how they, each other works. They know how to appeal to each other. They know where the pitfalls are in terms of relations. You know, it's a it's like any other group of nine, with the mini factions that break off and not just ideologically, they break off in different ways. And I would suspect not not saying that Justice Breyer told me this or not saying that the other liberals or even the any of the justices told me this. But I think that Justice Breyer believes that based on his experience, he still has something to contribute here with some of these tougher cases.
But so let's switch gears a little bit. Can you talk a little bit about how you got, you know, your career path you like, like most reporters, you didn't start out covering the supreme court?
I actually did during a lot of my Washington work. I started as a government reporter. Yeah, strangely, I have been covering this report for so long, I just keep changing publications. I started as a government and politics reporter, you know, covering City Council's and then state houses, and then I covered the congressional delegation. And then when I switched to Congressional Quarterly, back in 1989, actually, I started coming to court in February of 1989, which was just a month after john roberts had his first oral argument before the justice is when john roberts and Michael dreeben based off in a case so I have I have been around a long time, and I've tracked some of my key subjects for that time. So when I started at Congressional Quarterly, weekly report, I was I was covering the judiciary committee's on the hill. And then in 1992, when I was hired by the Washington Post to cover the Supreme Court, it was a bit of a continuation of the fact that I had picked up the supreme court as part of my health care And I covered the David suitors confirmation hearing in 1990. And Clarence Thomas's confirmation hearing in 1991. And that was what helped me get the job at the Washington Post in 1992. So I was in a, I was a supreme court reporter there and I was also I know you're a graduate of Georgetown. Right, Amy,
I am pleased to hear that you. And when I was in law school, we'd be in con law with Father Dryden, and he'd say, and Joe Biskupic sat right over there.
Just sat right over there and nearly was falling asleep because I was going at night. And I was, you know, there's so many people we know in our elite Washington world who drawback of the idea that somebody went to night school. But I was so proud of going to night school because I had a very bad full time job. And I had a baby, baby in the middle of all this, but I would go over to Georgetown at night. And frankly, it was fabulous for source development back in the old days, because there was so many judiciary committee members who Judiciary Committee staff who were also at night school, and remember Dale Bosley, who was the marshal, the Supreme Court, he was over there in the night division before he got that job. So it was actually a great experience. And I ended up getting a degree on the side. So I, I have always loved covering the court. And what's changed is that now I changed when I switched over to Reuters in 2012, when I wasn't the main person on a publication, covering the daily business of the corporate, I could step back and do projects or analytical stories. And that's what I do now for CNN, which I love because I can, I can follow what's happening day to day. But my responsibility is to add something greater something from my background, in the books or my experience over all these years, which makes the beat so much more exciting to me. So that's, that's what I've, that's sort of been the arc of my, my day job work. But then, as you say, on the side, starting in the early 2000s, I began writing books, starting with Justice Sandra Day O'Connor, which nicely merged my interest in politics and the law because she was, you know, she came to Washington, knowing how to count votes from her experience as a state senator and majority leader in Arizona. And I started with her and you know, the rest.
Yeah, so you've written four books. And that is a lot for somebody with a full time job, even with, you know, even with book leaves, it's still a lot, because I'm sure you were working on the books, even on both sides of the book leaves.
You know, you're right, and probably what at first of all, I've always had a very high energy level, and, you know, going to law school at night, get you into a mindset of your day becomes just a long day, you come home, you make dinner, you eat with your family, then you go up to this very crowded room of books and papers and everything else and have at it. And then you do it on weekends. And I actually enjoyed so much. And that's the thing I say to people, when people ask about going to law school, or they ask about writing a book, and I said it, it will always be hanging over your head. So you really have to love doing it. And I felt that way about law school, Amy, and that was the luxury of doing it at night, I kept saying to myself, if at any point, it becomes too hard, you have a full time job, you have a very good full time job. You can you can always quit. But I didn't. And coincidentally when I took the bar, this somehow seems fitting when I took the bar, it was in 1994. And I was also covering briars hearings. So there was like there's been this weird thing of you know, just a Steven Briar hovering and you know, having to learn all about him all along at these various stages, even while I was you know, either doing books or or even law school on the side.
Do you feel like your approach to writing biographies has changed over time, you know, between O'Connor and Roberts? I mean, obviously, they're very different people who've had very different careers. So maybe your approach this subject has changed.
Right? That's a good question. I remember when I first delved into justice O'Connor's life, and I spent a lot of time out in her legislative files in Arizona, and a lot of time down in the Powell, lewis powell archive down at Washington and Lee because she and justice Powell were such good friends. And she had written up all sorts of wonderful correspondence that helped me see into her life. And obviously I spent time in Arizona and went out to the ranch. So I was very much focused on how Sandra Day O'Connor became Sandra Day O'Connor. And at that point, I wasn't, you know, I obviously was writing about what she was like as a justice and I had access to lots of paper. To understand that, but I wasn't as concerned then about sort of what the current dynamic on the court was, and that change. And that has changed. I'm working. Now as I, as I'm working on these books. And as I worked on the Chiefs book, I was also trying to add something for readers about the behind the scenes dynamic that would inform the current court. And I think that i think i first got a taste of that when I was doing the book on Justice Sotomayor, the the book I wrote about Justice Sotomayor, which follows the Antonin Scalia book was not a biography, like the O'Connor and Scalia books, where it was much more of a political history. But because while I was doing that, I got some inside information about some, you know, some events at the court and switched votes. For example, what happened behind the scenes when they the justices first took up the University of Texas at Austin case that had been brought up by Abigail Fisher, the affirmative action case, that kind of gave me a taste for finding out more of what was happening behind the scenes. So I, I found that I was pivoting a little bit to try to get more up to date information of what was happening, even though I was looking back at people's lives. And that's why when I did the cheap, the book on the chief, it was a real pleasure to go to Johnstown, Pennsylvania, where his parents had met, grown up and, you know, go to the library there to study the ethnic history of his family. But it was also quite challenging to find out, for example, what had really happened in the first Affordable Care Act case where he, you know, we had known that he had changed his vote on the individual insurance mandate, because of the reporting Jan Crawford had done. But I found that along the way, that he also switched his vote on the Medicaid portion. And I became interested in that and wanting to pull that out of various sources at the court. And that has become a nice challenge to have. And that sort of subtext of of my reporting is not, you know, it's not the main thing that I want people to take from these books, because I want them to be, you know, character studies. But it's been a nice little bonus. And it's helped bring more attention to the reporting, because people, people hardly know anything about what's going on behind the scenes. The court carefully guards a lot of this. And it's been, I felt fortunate that I've been able to find out some things.
Yes, well, it has definitely been about. So we've we've certainly enjoyed it. Do you have anything new in the works that you can talk about or any plans?
I am working on another book. It's a long range. It's a long way off. Long Range project. It's more of a group portrait this time of the courts during the Trump years and then the pivot into the Biden administration and, and looking at essentially the the Trump effect on the court, not just in the his appointment of three justices. Super significant, just that, but also the Trump administration's arguments before the court, how were they were received by the court, the pressures that the individual justices experienced because of the Trump administration. And but then, looking ahead, also not just not just Trump centric care. But looking ahead, looking also at how the court responded when the Biden administration came in. So it's it's a little bit more of a wider lens and looking but still looking at relationships among the justices, and just how the law changed because of the Trump administration. And what's happening now with the Biden administration.
One last question. Looking ahead, and the sort of nearer term horizon, we've talked about some of the cases on the docket for the upcoming term abortion, public funding for religious schools, guns, anything else you're watching or sort of any themes you're looking at in the upcoming term?
Uh, yeah, I would say one of the most important things I'm wondering about is our newest justice. Amy Coney Barrett. You know, we saw her a lot non stop during the confirmation hearing. But then that was it. And you know, we haven't seen her in any public setting to give a speech, or, you know, you to be at a conference the way we normally would see justices when we're not in the COVID time. And she wrote so little last term. I think her her concurring opinion in the Fulton case the Catholic social services, foster parents. was was, was important was a clue to some of her thinking, maybe a little bit of her go slower approach compared to some of her brethren on the on the right. But but overall she she did not give us that much to fully understand her. And and that's perfectly normal in some ways because, you know she's got, you know maybe three decades ahead of her on the court so I'm looking for many more data points on her on justice Barrett and and also how she's going to be compared to the other two Trump appointees. Now, just as Neil Gorsuch gave us a lot right away. You know, back in 2017. He wrote several concurrences he he was speaking publicly in 2017. He's, he's always been out there in many ways. He He immediately started writing a book now, apparently, she has immediately started writing a book. But we don't know for sure, because she has not said anything herself. About this reported $2 million contract that she's gotten to write a book. You know, that's, that's what's been reported by political but we don't know. So that's another thing what, what is she doing on the side with her very full life that she already has. So I would be looking at her and I guess of all the cases you you mentioned, Amy, the one that I think is going to be most challenging will be the abortion rights case, and just what they've what they've set themselves up for here. So that and then finally, one other small thing only because I've I've covered the Harvard, the Harvard affirmative action case since the day it was filed back in November 2014. I went up to Boston and covered the trial. I'm very much interested in that case. So I'm curious about how the Biden administration makes its recommendation to the justices about probably not taking the case. And then to see what the justices themselves do with, you know, a major major case that will put affirmative action and baki and grutter in the crosshairs.