Justice Stephen Breyer Is Retiring, And Biden Will Now Get His First Supreme Court Pick
Biden has pledged to choose a Black woman as the court’s next justice.
WASHINGTON — Justice Stephen Breyer intends to retire at the end of the US Supreme Court’s current term, giving President Joe Biden his first Supreme Court nomination and an opportunity to fulfill a campaign pledge to make history by appointing a Black woman to the court.
Breyer officially notified Biden of his intent to step down as an associate justice in a letter on Thursday. He wrote that he would retire once the court had wrapped up its business for the term, which typically happens in June or July, and that his retirement was contingent on his successor being confirmed by then. NBC News had first reported the news a day earlier.
Breyer, a justice since 1994 and member of the court’s left-leaning wing, faced a growing chorus of liberals calling for him to retire early in Biden’s first term while Democrats still control the Senate. They frequently invoked the late justice Ruth Bader Ginsburg’s decision to stay on the bench during the Obama years and how the liberal icon’s death in September 2020 allowed former president Donald Trump and Senate Republicans to swiftly confirm the conservative Justice Amy Coney Barrett.
Breyer didn’t directly engage with the advocacy groups and academics urging him to step down, but he did push back broadly against what he described as a dangerous politicization of the court. In a speech in April 2021 at Harvard Law School, he warned, “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish.” Hammering his point home, that speech is set to be released in the fall as a book titled The Authority of the Court and the Peril of Politics.
But any Supreme Court nomination has massive political consequences, both in the moment and for decades after the president who made the nomination has left office. Breyer’s retirement instantly sets off what is sure to be one of the biggest political battles of the year. As the White House prepares to name a nominee and members of the Senate gear up for a confirmation fight, liberal and conservative advocacy groups are set to pour millions of dollars into rallying their supporters for or against Biden’s pick.
A Supreme Court spokesperson did not immediately return a request for comment after the reports broke on Breyer's imminent retirement. White House spokesperson Jen Psaki addressed the reports in a tweet after multiple news outlets confirmed the original NBC News article but did not immediately confirm that he planned to step down.
"It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no additional details or information to share from @WhiteHouse," Psaki wrote.
The Senate is split 50–50 between Democrats and Republicans, but Democrats effectively control the chamber because of Vice President Kamala Harris’s tiebreaking vote. That gives the White House the upper hand in moving Biden’s nominees through the confirmation process for now, but the administration has little wiggle room.
Breyer’s decision to retire now gives the Biden administration time to push through a nominee while the Senate is in his party’s control, albeit with a slim majority. If Republicans retake the Senate in the 2022 midterms this fall, Minority Leader Mitch McConnell already has said he would block any Supreme Court nominee from Biden in 2024 because it’s a presidential election year. He left open the possibility that he’d attempt to block a nominee in 2023 as well, depending on when the vacancy opened up.
Replacing Breyer with a liberal-leaning justice will likely preserve the status quo of the court’s three-member liberal minority, which includes Justices Sonia Sotomayor and Elena Kagan. The party of the president who nominated a particular justice isn’t always a predictor of how they will rule, even in cases that are politically or socially fraught. But it is helpful in understanding how they approach decision-making and where they stand on issues that have historically divided the court along ideological lines, such as abortion, gun ownership and the Second Amendment, and voting rights.
Biden said during the 2020 campaign that he would nominate a Black woman for his first Supreme Court vacancy. That announcement focused a spotlight on a handful of judges who had already been considered contenders under a Democratic president, including Judge Ketanji Brown Jackson, who was confirmed last year to the influential US Court of Appeals for the DC Circuit — historically a springboard to the high court — and California Supreme Court Justice Leondra Kruger, who has served on that bench since 2015.
Jackson and Kruger both have résumés featuring Ivy League degrees and prestigious clerkships, including on the Supreme Court; Jackson clerked for Breyer and Kruger for the late justice John Paul Stevens. Their career paths then diverged: Jackson was a federal public defender and served on the US Sentencing Commission before she was confirmed in 2013 to the federal district court in Washington, DC. Kruger worked in the solicitor general’s office at the Justice Department and as a senior official in the Office of Legal Counsel, which provides legal advice across the executive branch, before her appointment to California’s highest court.
Liberal advocacy groups have pushed Biden to tap judges from underrepresented professional backgrounds. His nominees to date — including Jackson for the DC Circuit — have prominently featured former public defenders and civil rights lawyers. A big question heading into the White House's announcement of Biden's first nominee: Will that trend continue for his most consequential judicial pick to date?
Breyer had spent the bulk of his career as a legal academic on the faculty of Harvard Law School before former president Jimmy Carter nominated him for the 1st Circuit in 1980; he’d also served as an official in the Justice Department’s antitrust section, as a member of the Watergate prosecution team, and as a lawyer to the Senate Judiciary Committee. His nomination to the Supreme Court under former president Bill Clinton enjoyed bipartisan support; the Senate confirmed him in July 1994 by a vote of 87–9.
Breyer didn’t share the reputation that fellow Clinton appointee Ginsburg had as a liberal firebrand and standard-bearer, but he routinely joined with the court’s liberal wing in high-profile fights. He was a proponent of the idea of a “living Constitution” that evolves along with society, a theory of legal analysis typically embraced by liberals; he would spar — collegially — with the late conservative justice Antonin Scalia, who was a leading voice in favor of “originalism,” which focuses on the meaning and intent of the Constitution and laws at the time they were adopted.
Breyer became a leading voice against the death penalty. He wrote dissents as the court’s conservative majority rejected cases lodged by people on death row who were seeking a last-minute reprieve from the court. In 2015, he wrote a now-famous dissent in Glossip v. Gross that laid out the case for why the death penalty likely violated the Eighth Amendment’s prohibition against cruel and unusual punishment; the practice was unreliable, arbitrary, and involved long delays that caused “individual suffering” and undermined the supposed purpose of such a sentence, he wrote at the time. The following year, he wrote a book called Against the Death Penalty.
Breyer also wrote several landmark decisions on abortion. In 2000, he wrote the majority opinion in a case that dealt with a type of late-term procedure. In the 5–4 decision in Stenberg v. Carhart, Breyer wrote that a Nebraska law that criminalized the procedure, save very few exceptions, was unconstitutional and couldn’t stand given the court’s previous rulings in other abortion cases, including Roe v. Wade. In 2016 and 2020, he wrote back-to-back deciding opinions that struck down major abortion restrictions in Texas and Louisiana, respectively.
Most recently, he wrote the majority opinion this summer in one of the blockbuster cases of the past year: the latest Republican challenge to the Affordable Care Act, former president Barack Obama’s signature healthcare law. Texas and other Republican-led states argued that the whole law had to fall after Congress eliminated the tax penalty on the individual mandate, which required most Americans to have health insurance. In a 7–2 decision that united the court’s liberal wing with several conservatives, Breyer concluded that Texas and the other Republican challengers lacked standing to bring the case at all, leaving Obamacare intact.
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