Stephen Breyer to Retire From the Supreme Court, Giving Biden Chance to Pick a Liberal Judge

As per numerous media reports on Wednesday, Justice Stephen Breyer will retire from the Supreme Court, which, if verified by the court, will give Joe Biden the chance to accomplish a campaign goal by appointing the first Black woman judge to the bench.

Such a selection would be a watershed moment for the liberal side of the bench, even as it deals with the Trump administration’s powerful conservative supermajority. Breyer, 83, was already under pressure by liberals keen to allow the incoming president to fill a seat on the court.

At the same time, Democrats have control of the White House and Congress, including a razor-thin margin in the Senate, which would have to confirm Biden’s choice. Later in the year, if Republicans retake control of the US Senate in November’s midterm elections, Biden’s nominations might be vetoed.

Breyer, born in California, was nominated by Bill Clinton in 1994 and approved with broad bipartisan support in the Senate. As word of Breyer’s retirement spread, the White House distanced itself from the announcement, implying that Biden had not put pressure on the judge.

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Biden, who was meeting with CEOs from the private sector at the White House to discuss his legislative agenda, declined to comment on the retirement itself, adding, “There have been no pronouncements from Justice Breyer.”

The Whitehouse’s Response

However, neither the White House nor the court issued any denials.

According to a source familiar with the subject, a CNN reporter stated on Wednesday evening that Breyer and Biden were slated to make a public appearance on Thursday when the justice would publicly announce his retirement.

The first quandary from the mainstream press to the press secretary, Jen Psaki, at the White House daily briefing, was whether Biden intends to follow through on his campaign promise to nominate a Black woman to the court, to which she replied, “The president has announced and reconfirmed his intention to appointing a Black woman to the Supreme Court, and he intends to do so.”

According to Gabe Roth, executive director of Fix the Court, a group that works for federal judicial reform, Breyer’s decision was “a long time coming.” The danger that an 83-year-old would stay in office only to be succeeded by a Republican president and Senate grew enormously with each passing year.”

“The Supreme Court is not an apolitical body,” Roth said, “and if you care about safeguarding your legacy, you resign when a like-minded president is in power.”

Stephen Breyer
Stephen Breyer

Breyer is likely the least well-known of the current justices outside of legal circles, owing to his reputation as a pragmatic who has spent more than two decades at the moderate end of the liberal wing, assiduously avoiding politics.

Following the death of Ruth Bader Ginsburg in 2020 at the age of 87, he is the most senior member of the court’s liberal minority. Breyer has decided to call it quits despite what appeared to be resistance to pressure to retire shortly during the Biden administration.

Among the names presented on Wednesday, Ketanji Brown Jackson, an appeals court judge in Washington, DC, appeared to be the favorite.

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The Reaction

Other candidates include California Supreme Court Justice Leondra Kruger, US District Court Judge J Michelle Childs, and others. Even though Breyer did not explain when the news broke, there are hints about what he may have been thinking.

In an August interview with the New York Times, he paraphrased his late colleague on the court, Antonin Scalia, as saying, “I don’t want somebody nominated who would just undo everything I’ve done for the previous 25 years.”

Whatever his reasoning, there is no question that he has warnings from leftists ringing in his ears since last summer that he shouldn’t hold on to his position and risk Republicans dictating his successor.

That happened with Ginsburg, who refused years of hints and direct persuasion, even from Barack Obama while he was president. She died in the final stages of the 2020 presidential campaign, giving Republican President Donald Trump his third Supreme Court nominee.

The Senate, commanded by Republican Mitch McConnell at the time, pushed through Ginsburg’s replacement, ultra-conservative Amy Coney Barrett, giving conservatives a 6-3 majority on the court.

Last June, McConnell stated that if Republicans won control of the Senate, he would “very unlikely” allow Biden to fill a seat. However, the court’s tilt to the right began five years ago, when Scalia died unexpectedly, and Senate Republicans refused to consider Barack Obama’s nominee of Merrick Garland.

If Garland, now Biden’s attorney general, had been approved, the Supreme Court would have had a majority nominated by Democratic presidents for the first time in 50 years. Instead, Trump surprisingly won the presidency, and his first of three nominees, Neil Gorsuch, joined the court in April 2017.

The court’s “swing vote,” Justice Anthony Kennedy, departed a year later, and Trump replaced him with Justice Brett Kavanaugh. With Kennedy’s departure, Chief Justice John Roberts assumed the ideological, though right-leaning, center of the court. He has attempted to counteract public conceptions of the court as just a political entity.

Earlier this year, Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, wrote an opinion article for the Washington Post urging Breyer to retire sooner rather than later.

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On the other hand, Chemerinsky praised Breyer’s “pragmatic approach to judgment that looks more to real-world repercussions than abstract ideology” in the American Bar Association Journal.

And he cited Breyer’s significant positions. In June 2016, a majority ruling in Whole Woman’s Health v Hellerstedt ruled against significantly limiting abortion in Texas.

And a dissent in the 2015 case of Glossip v Gross, Breyer stated that the death sentence “very likely violates the eighth amendment” to the US constitution, which outlaws cruel and unusual punishment.

Breyer was reared in a Jewish home in San Francisco. He went to Stanford University, Magdalen College, Oxford, and Harvard Law School. Hillary Clinton praised Breyer’s ruling, calling it “admirable.” Senate Majority Leader Chuck Schumer expressed confidence that Biden’s nomination would be confirmed quickly.

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