WASHINGTON, D.C. — According to those familiar with Justice Stephen Breyer’s thinking, he will leave the Supreme Court at the end of the current term. 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 permitted 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.
“It has always been the prerogative 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,” White House press secretary Jen Psaki tweeted earlier. She noted that the White House has no new data or information to provide.
In a Washington Post op-ed piece published in May, Erwin Chemerinsky, dean of the University of California Berkeley School of Law, asked Breyer to step down “when the custodians of our system must prioritize the benefit of an institution and a country they love over their own interests They must accept that no one, not even a brilliant judge, is irreplaceable and that the dangers of remaining are more than theoretical.”
On the campaign trail, Biden stated that he would appoint a Black woman to the Supreme Court. Following Breyer’s pronouncement, 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 is stepping down. It’s past time for a Black woman to be appointed to the Supreme Court.”
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 society, and it is unacceptable that no Black woman has ever served on the Supreme Court of the United States – that is something I want to change,” 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.”
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.
“I do it because I believe the law, in general, emerges out of communities of people who have 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 similar federal legislation established by Congress. Affirmative action and other civil rights initiatives were important to him.
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.
