Supreme Court Justice Stephen Breyer announces retirement

Written by Eric Revell

UPDATE - 1/27/22

• Supreme Court Justice Stephen Breyer on Thursday officially announced that he intends to retire from active service when the Court’s current term ends this summer, assuming his successor has been nominated and confirmed by then.
• Breyer sent a letter to President Joe Biden dated Thursday in which he officially announced his retirement and wrote, “I have found the work challenging and meaningful. My relations with each of my colleagues have been warm and friendly. Throughout, I have been aware of the great honor of participating as a judge in the effort to maintain our Constitution and the rule of law.”
• Breyer also appeared with Biden for an event at the White House and spoke about the “miracle” that America’s experiment with the Constitution and the rule of law has been and will continue to be:

“It’s an experiment that’s still going on. And I’ll tell you something, you know who will see whether that experiment works? It’s you, my friend. It’s you, Mr. High School Student. It’s you, Mr. College Student. It’s you, Mr. Law School Student. It’s us, but it’s you, it’s that next generation, and the one after that. My grandchildren and their children. They’ll determine whether the experiment still works, and of course, I’m an optimist and I’m pretty sure it will. Does it surprise you that that’s the thought that comes into my mind today? Thank you.”

• Biden called Breyer an “exemplary justice” who has been “fair to the parties before him, courteous to his colleagues, and careful in his reasoning.” The president said that he intends to nominate Justice Breyer’s successor before the end of February, which will allow the Senate’s confirmation process to begin in earnest for a nominee who would become the first black woman Supreme Court justice if confirmed.

The original article appears below.

What’s the story?

• Supreme Court Justice Stephen Breyer is reportedly set to retire when the Court’s current term ends in June or July, which will set off a scramble in the Senate to confirm his successor. Multiple news outlets are reporting that Breyer informed President Joe Biden of his intent to retire last week and that the White House is notifying senators, some of whom have already spoken publicly about the upcoming nomination. 
• Breyer hasn’t officially announced his retirement yet, and it’s possible he will release a statement in the near future. Biden told reporters Wednesday that he will wait to comment until Breyer makes an announcement. It’s unclear at this time whether Breyer intended to announce his retirement today. In recent decades, Supreme Court justices who are retiring often announce in the spring as the term draws to a close or shortly after the final opinions are released in June or July.

Justice Breyer’s legacy 

• Breyer, 83, has been a leading progressive on the Court since he was confirmed to the bench in 1994. His confirmation hearings in the Senate Judiciary Committee were chaired by then-Sen. Joe Biden (D-DE) and the Senate confirmed him on a bipartisan 87-9 vote.
• During his time on the bench, Breyer has written a number of notable opinions, such as a majority opinion in June Medical Services v. Russo, a 2020 decision which struck down a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital as an unconstitutional burden on women's right to access an abortion. That ruling reaffirmed precedents Breyer helped establish in Hellerstedt v. Whole Women’s Health. Breyer also wrote the majority opinion in a recent decision that dismissed a challenge to the Affordable Care Act brought by 18 states.
• Liberal interest groups have undertaken a lobbying campaign in recent months aimed at persuading Breyer to retire and make way for a younger liberal justice, including the use of a billboard truck emblazoned with the justice’s face and messages saying, “Breyer, retire. Don’t risk your legacy.” 
• Breyer has been an outspoken opponent of progressives’ push to expand the Supreme Court by adding four liberal justices to create a left-leaning majority on the bench, expressing similar concerns to those raised by the late Justice Ruth Bader Ginsburg. Last year, he spoke for two hours at Harvard Law School to warn against court-packing efforts and said:

“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the Court’s power, including its power to act as a check on other branches… I hope and expect that the Court will retain its authority. But that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

Who may be nominated as Breyer’s successor?

• During his presidential campaign, President Joe Biden pledged that he would nominate the first black woman to serve on the Supreme Court if a vacancy arises while he is in office. Assuming he sticks to that promise, there are several potential frontrunners who may be nominated who fit those characteristics.
• Judge Ketanji Brown Jackson, 51, is perhaps the leading contender given the stature of her current role on the D.C. Circuit Court of Appeals. The D.C. Circuit is considered the nation’s second-highest court behind the Supreme Court because its jurisdiction includes Congress and many federal agencies, which means it deals with a caseload heavy on constitutional and administrative law and tends to produce future Supreme Court justices. Supreme Court Chief Justice John Roberts and Justice Brett Kavanaugh were both elevated from the D.C. Circuit.
• She was confirmed by the Senate to her current role on a 53-44 vote in June 2021, with the support of three Republican senators ― Sens. Susan Collins (R-ME), Lindsey Graham (R-SC), and Lisa Murkowski (R-AK). Prior to that, Jackson served as a judge of the U.S. District Court of the District of Columbia after the Senate confirmed her on a voice vote in 2013. Jackson clerked for Justice Breyer in 1999-2000. She is also married to the twin brother of former House Speaker Paul Ryan’s (R-WV) brother-in-law.
• Justice Leondra Kruger, 45, has served on the California Supreme Court since 2015. Kruger worked in D.C. as an assistant to the U.S. solicitor general for six years, during which time she argued a dozen cases before the Supreme Court, and later worked as a deputy assistant attorney general prior to her appointment to the California Supreme Court. Kruger clerked for Supreme Court Justice John Paul Stevens in 2003-2004.   
• Judge Michelle Childs, 55, has served on the U.S. District Court for the District of South Carolina since 2010 when she was confirmed by the Senate on a voice vote. Childs is also a pending nominee for a position on the D.C. Circuit, and it’s possible that the Senate may act on that nomination in the coming weeks. Rep. Jim Clyburn (D-SC), a close ally of Biden, has been a strong advocate for her to be considered for a Supreme Court vacancy.
• Vice President Kamala Harris has been mentioned as a possible Supreme Court pick given her background as a former attorney general in California, but her selection could prove tricky given the evenly-divided Senate and the need for Congress to confirm a successor vice president with a majority vote in both chambers.
• Ultimately, Biden’s selection will have to be acceptable to all 50 Democratic senators and Harris given the 50-50 split in the Senate. It’s possible that some GOP senators may support Biden’s nominee, although the contentious nature of recent Supreme Court confirmations and the heightened level of vetting nominees undergo (especially compared to district or circuit court nominations) means it’s uncertain how much support a nominee will have from senators in either party for a confirmation vote until the process plays out.

What’s the timeline for the successor’s confirmation?

• Majority Leader Chuck Schumer (D-NY) and Judiciary Chairman Dick Durbin (D-IL) are reportedly planning for the Senate to act quickly on the confirmation of Breyer’s successor, potentially following the 30-day timeline from nomination to confirmation used by Republicans in the confirmation of Justice Amy Coney Barrett in 2020. That was the second-fastest confirmation process in the modern era and most Supreme Court confirmations have taken closer to two months to reach a conclusion.
• The Senate could technically start the confirmation process for the position before Breyer officially retires, so depending on the timing of Breyer’s retirement and Biden’s selection of a successor the process may get underway this spring or summer.
• The Supreme Court’s current term will end sometime in June or July, depending on when the justices finish crafting opinions in cases that have been heard or will be in the next few months. Arguments in the first cases of the next term are scheduled to begin on October 3, 2022.
• If the nomination process is derailed for some reason and Democrats are unable to confirm Breyer’s successor this year it could weaken their hand in getting a nominee confirmed if Republicans win control of the Senate in this fall’s midterms. That could create a standoff between the Biden White House and the Senate GOP over the consideration of a nominee whom most Republicans oppose and potentially force Biden to name a new nominee or create an impasse similar to 2016, when the Senate GOP declined to consider then-Judge Merrick Garland’s nomination to the vacancy created by Justice Antonin Scalia’s death. 
• Minority Leader Mitch McConnell (R-KY) told conservative commentator Hugh Hewitt that a GOP Senate would block a Biden nominee put forward in 2024 but was non-committal when asked if there’s a nominee in 2023 and said, “Well, we’d have to wait and see what happens.”

(Photo Credit: Collection of the Supreme Court - Steve Petteway / Public Domain)