According to many sources, longtime liberal Supreme Court Justice Stephen Breyer is retiring, handing President Joe Biden his first high court vacancy, which he has promised to fill with the historic naming of the court’s first Black woman.
Breyer, 83, has been a pragmatic figure on a court that has become increasingly conservative, attempting to form majority votes with more moderate justices on both sides of the aisle.
Biden’s resignation will allow him to pick and get confirmation for a replacement before the November election, when Republicans may reclaim the Senate and prevent future choices.
According to a person briefed on the preparations who was not authorized to publicly discuss it in advance, Biden and Breyer are set to conduct an event at the White House on Thursday to formally announce Breyer’s plans to retire.
Democrats are hoping for a quick confirmation, possibly even before Breyer steps down, which isn’t expected until the summer.
He has been a justice since 1994, when President Bill Clinton appointed him. When the Democrats controlled the White House and the Senate during Barack Obama’s presidency, he and the late Justice Ruth Bader Ginsburg chose not to resign.
Ginsburg died in September 2020, and then-President Donald Trump appointed Amy Coney Barrett, a conservative, to fill the seat.
Because his replacement would almost definitely be confirmed by a Senate where Democrats have the smallest majority, Breyer’s resignation will have no effect on the court’s 6-3 conservative majority. Justice Clarence Thomas, a conservative, will become the court’s oldest member. In June, Thomas will be 74 years old.
Biden’s nomination “will receive a speedy hearing in the Senate Judiciary Committee and will be reviewed and confirmed by the full United States Senate with all deliberate speed,” according to Senate Majority Leader Chuck Schumer. According to Biden aides and allies, a White House decision on a nominee might take several weeks.
Republicans who modified Senate rules to allow simple majority confirmation of Supreme Court nominees during Trump’s presidency appeared resigned to the outcome.
“If the Democrats stay together – which I anticipate they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” said Sen. Lindsey Graham of South Carolina, a Republican who previously chaired the Senate Judiciary Committee.
Libertarian interest groups were relieved. They’ve been pushing on Breyer to step down, fearful of confirmation issues if Republicans retake the Senate.
“Justice Breyer’s retirement is long overdue, but now is the time to ensure that our party remains unified in support of his replacement,” Demand Justice Executive Director Brian Fallon stated.
California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, famed civil rights lawyer Sherrilyn Ifill, and U.S. District Judge Michelle Childs, whom Biden has recommended to be an appeals court judge, are among the names being floated as potential nominees. Childs is a favorite of Rep. James Clyburn, D-South Carolina, who endorsed Biden weeks before the state’s 2020 presidential primary.
During the 2020 presidential campaign, Biden promised to name the first Black woman to the Supreme Court. He has worked to increase racial, cultural, and experience diversity in the lower federal courts since taking office a little more than a year ago. He has more than doubled the number of Black women on appellate courts.
“We know that when America’s boardrooms, legislatures, and even the Supreme Court start to resemble America, we all gain,” Democratic Rep. Joyce Beatty of Ohio, the chairwoman of the Congressional Black Caucus, said.
A Black woman’s nomination might also benefit Biden politically with some of the Democratic Party’s most powerful election-day supporters. Black leaders and organizations have chastised him for failing to persuade the Senate to enact legislation protecting voting rights, which are being curtailed in a number of Republican-led states.
The Supreme Court is a slow-moving institution. Only five women have served on the United States Supreme Court, beginning with Sandra Day O’Connor in 1981. Justice Sonia Sotomayor, one of the five, is a Latina. Only two Black men have served on the Supreme Court: Thomas and the late Thurgood Marshall.
On Wednesday, the president refused to comment on news of Breyer’s retirement.
“Every justice should be able to decide what he or she will do and announce it on his or her own,” Biden added. “Leave him to make whatever comment he wants, and I’ll be happy to discuss it later.”
Breyer authored two significant opinions in favour of abortion rights on a court that was deeply divided on the subject, and he expressed his growing uneasiness with the death sentence in a series of dissenting opinions in recent years, sometimes overshadowed by his fellow liberal Ginsburg.
Breyer’s stance on the Ten Commandments being displayed on government property exemplifies his search for a middle ground. In 2005, he was the only member of the court to vote in favor of both cases that outlawed exhibits in two Kentucky courthouses while allowing one to remain on the grounds of the Texas state Capitol in Austin.
Breyer has been an energetic and cheery questioner during arguments, a frequent public speaker, and quick with a joke, often at his own cost, during his more than 27 years on the court.
In 2007, he made a lighthearted cameo on a witty National Public Radio show, but he was unable to answer obscure questions about pop singers.
During debates, he is notorious for his extensive, often far-fetched hypothetical queries to lawyers, and he has an air of an absent-minded professor. Earlier in his career, he taught antitrust law at Harvard Law School.
He also worked for late Massachusetts Democrat Sen. Edward Kennedy when he was head of the Senate Judiciary Committee. According to Breyer, the encounter made him a firm believer in compromise.
He could still write vehement dissents, as he did in the Bush v. Gore decision, which effectively won the 2000 election in Republican George W. Bush’s favor. Breyer unsuccessfully persuaded his colleagues to send the case back to the Florida courts so that the winner could be decided in a “constitutionally proper contest.”
His feelings bubbled over as he summarized his dissent from a decision that outlawed the death penalty in June 2007, at the end of a challenging tenure in which he found himself on the wrong end of about two dozen 5-4 rulings.
In front of a packed courtroom, Breyer said, “It is not often that so few have changed so much so quickly.”
His tenure in the Senate led to President Jimmy Carter appointing him as a federal appeals court judge in Boston, where he served for 14 years. His appointment to the Supreme Court, with an 87-9 vote, was the last with less than ten Senate dissenters.
Breyer’s opinions were notable for not having any footnotes. Arthur Goldberg, the justice for whom Breyer clerked as a young lawyer, counseled him against using such a writing instrument.
“If you believe, as I do, that the major job of an opinion is to explain to the audience of readers why the court has reached that decision,” Breyer once stated, “that is an important point to make.” “It’s not to demonstrate that you’re correct. You can’t prove that you’re right since there isn’t any.”
Breyer was born in San Francisco and earned an Eagle Scout as a youth before embarking on a brilliant academic career at Stanford, where he graduated with honors. He studied philosophy, politics, and economics at Oxford, where he received first-class honors in all three subjects.
Breyer subsequently went on to Harvard Law School, where he was a member of the Law Review and received excellent honors.
Before becoming a Harvard law professor and a lawyer for the Senate Judiciary Committee, he worked in the Justice Department’s antitrust section.
Breyer and his wife, Joanna, a psychologist and the daughter of the late British Conservative politician John Blakenham, have three children: Chloe, Nell, and Michael, as well as six grandchildren.