Supreme Court Justice Stephen Breyer is planning to retire.
Breyer has faced calls for his retirement from Democrats since President Biden was elected and Democrats secured a majority in the Senate last year.
Breyer’s retirement will go into effect at the end of the court’s current term.
Democrats have been clamoring for his retirement, eager to avoid another disaster of the sort that ensued for them in 2020, when Justice Ruth Bader Ginsburg’s death allowed President Trump to cement a 6-3 conservative majority. President Joe Biden has pledged to put a Black woman on the Court, a vow he may now seek to fulfill.
White House Press Secretary Jen Psaki issued a statement reiterating that retirements are up to Supreme Court justices, adding that the administration has no additional information to share.
Senate Majority Leader Chuck Schumer (D-NY) said that the body would consider a replacement for Breyer “with all deliberate speed,” while Sen. Patty Murray (D-WA) demanded that Biden “make history” by appointing the court’s first black female justice.
Sen. Lindsey Graham (R-SC), the senior Republican on the Senate Judiciary Committee, reacted by remarking that Democrats “have the power to replace Justice Breyer in 2022 without one Republican vote in support.”
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” he added, ratifying the view that Supreme Court appointments are all about power.
The justice, appointed to the bench in 1994 by President Bill Clinton, is 83 years old. There’s been no indication he’s facing any serious health issues. Progressives have been vocal in their demand that Breyer retire this year, while Democrats held a paper-thin majority in the Senate. Ginsberg ignored such calls in 2013 and 2014, the last time Democrats controlled both the Senate and the White House — a decision that proved immensely consequential when Trump was able to yank the court to the right by filling her seat, right before he lost re-election, with Justice Amy Coney Barrett.
Breyer started his judicial career as a Carter appointee to the U.S. Court of Appeals for the First Circuit, which covers New England, where he eventually served as chief judge.
On the Supreme Court he has served as a reliable vote in the liberal block, though he has been seen as less of a firebrand than Ginsburg, a fellow Clinton appointee, or Justice Sonia Sotomayor.
Nevertheless, he has been a pointed voice on the issue of the death penalty, and wrote a searing dissent in the last major capitol punishment case the court heard, where the conservative majority sanctioned the use of questionable legal injection drugs.
More recently, Breyer has often written in tandem with Sotomayor and Justice Elena Kagan, the three making up the shrinking liberal bloc.
He also wrote a 5-4 decision in 2016 that buttressed abortion rights by limiting the leeway states have to pass onerous regulations on clinics that lack a legitimate medical purpose. That precedent survived a 2020 Supreme Court abortion law challenge, though the future of abortion rights has grown much dimmer with the Court’s hefty conservative majority and nonchalance about letting a “clearly unconstitutional” ban out of Texas temporarily stand.
During oral arguments, Breyer has a reputation for asking long-winded questions, often involving extensive hypotheticals. Prior to joining the judiciary, Breyer served in the Justice Department, where he worked on the Watergate prosecution team, as a Senate aide,and later in academia.
Assuming Biden is successful in filling Breyer’s seat, it will be unlikely to change the overall dynamics of the 6-3 court. But the President will have his chance to influence the court’s perspective and make history with his vow to nominate a Black female candidate. Among the names that have been floated around are U.S. Judge Ketanji Brown Jackson, who recently was nominated for the powerful federal appellate court in D.C, as well as California Supreme Court Justice Leondra Kruger.
The Coney Barrett confirmation set the bar for a speedy Senate approval process. There will be little incentive for Biden to move slowly to get Breyer’s replacement confirmed.
