According to those familiar with Justice Stephen Breyer’s thinking, he will leave the Supreme Court at the end of the current term.
A source familiar says that President Joe Biden and Supreme Court Justice Stephen Breyer will appear together at the White House on Thursday to announce Breyer’s retirement.
Breyer is one of the three surviving liberal justices on the court, and his decision to retire after more than 27 years on the bench allows Biden to pick a replacement who may serve for decades while keeping the existing 6-3 split between conservative and liberal justices in the short term.
Breyer is the court’s oldest member, at the age of 83. For months, liberal activists have pressured him to step down while Democrats control both the White House and the Senate, a situation that could alter after the November midterm elections. They claimed that despite her history of health issues, Justice Ruth Bader Ginsburg lingered on too long and should have resigned during the Obama administration.
Ginsburg’s death from illness at the age of 87 allowed then-President Donald Trump to appoint Amy Coney Barrett as her replacement, bringing the Supreme Court even further to the right. Breyer’s seat on the liberal wing of the court may be secured by a Biden nomination for years or decades.
In brief remarks to the press on Wednesday, Biden stated that he will defer to Breyer in announcing his resignation.
He said, “Let him make whatever comment he wants, and I’ll be happy to talk about it later.”
In a Washington Post op-ed piece published in May, Erwin Chemerinsky, dean of the University of California Berkeley School of Law, urged Breyer to resign, writing that there are times “when the stewards of our system must put the good of an institution they love, and of the country they love, above their own interests. They have to recognize that no one, not even a brilliant justice, is irreplaceable, and that the risks presented by remaining are more than hypothetical.”
On the campaign trail, Biden stated that he would appoint a Black woman to the Supreme Court. Following Breyer’s announcement, there was an outpouring of statements urging him to go through with it. Last year, the progressive group Demand Justice leased a truck to drive through Washington with a billboard that read: “Breyer Retire. It’s time for a Black woman Supreme Court justice .”
Former Breyer legal clerk U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia, and Leondra Kruger, a justice on California’s Supreme Court, are among the likely candidates.
Jackson, a former Washington district court judge, was nominated to the United States Circuit Court by Biden and confirmed by the Senate in mid-June on a 53-44 vote that included three Republicans. She took over for Merrick Garland, who left the appeals court to become Vice President Joe Biden’s attorney general.
Sen. Patty Murray, D-Washington, was one of the first to issue a statement on the announcement of Breyer’s impending retirement, urging Biden to keep his promise to pick a Black woman as the next justice.
“The court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States — I want to change that,” she stated.
In a tweet, Senate Majority Whip Dick Durbin, D-Illinois, echoed those thoughts, saying Biden had the chance to offer “diversity, experience, and an evenhanded approach to the administration of justice.”
Biden’s nomination would “receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” according to Senate Majority Leader Chuck Schumer, D-N.Y.
“America owes Justice Breyer an enormous debt of gratitude,” Schumer continued.
Sen. Lindsey Graham of South Carolina, a Republican who voted for Justices Sonia Sotomayor and Elena Kagan, predicted that if Democrats “hang together,” as he expected, they will be able to replace Breyer without the need for a single Republican vote.
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said in a statement.
Despite appeals from some Biden supporters to increase the number of Supreme Court seats to counteract the court’s current conservative lean, Breyer indicated in March that doing so would jeopardise public trust in the court. He advised supporters of court cramming to “think long and hard before embodying those changes in law.”
Breyer was appointed to the Supreme Court by President Bill Clinton in 1994 and became one of the court’s moderate-to-liberal members, but he frequently stated that such labels are unhelpful.
Breyer felt that constitutional interpretation should be based on practical issues that change with time. This put him at odds with conservative justices who believe the court should be guided by the founders’ original purpose.
“The reason that I do that is because law in general, I think, grows out of communities of people who have some problems they want to solve,” he explained in an interview.
In 2000, Breyer authored the court’s ruling overturning a state law prohibiting some late-term abortions, and seven years later, he dissented when the Supreme Court upheld a similar federal legislation established by Congress. Affirmative action and other civil rights initiatives were important to him. In a well publicised dissent in 2015, he stated that the death sentence in the United States had grown so arbitrary that it was likely unconstitutional.
Biden is expected to move quickly to name a replacement who will be ready to take over when the new session of the Supreme Court begins on Oct. 3. Biden, a former chairman of the Senate Judiciary Committee, has firsthand experience with the confirmation process.