Justice Stephen Breyer to retire from Supreme Court

The Washington Post
By Robert Barnes

Justice Stephen G. Breyer will retire at the end of the current Supreme Court term, according to a person familiar with his plans, giving President Biden a chance to reinforce the court’s liberal minority and make good on his campaign pledge to make history by nominating the first African American female justice.

Breyer, 83, is the court’s oldest justice, and he has been under unprecedented pressure to retire while Democrats have narrow control of the Senate, which must confirm Supreme Court nominees. The current term concludes at the end of June.

NBC News and CNN first reported the development Wednesday, which had been expected.

A replacement chosen by Biden would not change the court’s conservative supermajority; Breyer is one of only three liberal justices. But it would give Biden the chance to have his nominee considered by a more favorable Senate, and mean a younger colleague for the court’s other liberals, Sonia Sotomayor, 67, and Elena Kagan, 61.

Senate Majority Leader Charles E. Schumer indicated that Biden’s eventual nominee would be considered and confirmed “with all deliberate speed.”

Biden’s pledge to nominate an African American woman is a first. There have been two Black men on the court — Thurgood Marshall and Clarence Thomas — and five women, including three current members of the court: Sotomayor, Kagan and Justice Amy Coney Barrett.

The two women most often mentioned as replacements are Judge Ketanji Brown Jackson, a former Breyer Supreme Court clerk who in June was confirmed to join the U.S. Court of Appeals for the D.C. Circuit, and California Supreme Court Justice Leondra Kruger, a former Justice Department official who has represented the government at the Supreme Court as deputy solicitor general.

Others will surely be added to the list, and Biden will likely cast a wide net. There are few Black women on the federal appellate court bench, the traditional spot from which Supreme Court nominees are chosen.

On the current court, only Kagan did not serve previously on an appeals court.

The person familiar with his plans said it is unlikely Breyer will make an announcement Wednesday — although that could change — and that Breyer could make his leaving the court contingent on the confirmation of a successor.

As reaction from lawmakers and interest groups emerged, Biden was reticent. “There has been no announcement from Justice Breyer,” the president told reporters at the White House. “Let him make whatever statement he’s going to make. And I’ll be happy to talk about it later.”

Breyer was chosen for the court in 1994 by President Bill Clinton, a year after Clinton picked Ruth Bader Ginsburg. He is known as a pragmatic liberal, more moderate than others on the left and willing to search for compromise among the court’s ideologically divided justices.

The term that ended last summer was one of his most productive and significant in his long career, receiving some of the top assignments from Chief Justice John G. Roberts Jr.

Breyer wrote the majority opinion when the court rejected the third challenge at the Supreme Court to the Affordable Care Act. Earlier, he authored the court’s decision that Google did not violate copyright law in a multibillion-dollar showdown with Oracle, a highly watched case in the tech world.

And he wrote the court’s defense of the First Amendment rights of public school students in a case involving a high school’s punishment of a cheerleader for a profane rant on social media.

Breyer’s decision to leave gives Biden a historic opportunity but also could prompt a monumental battle. Democrats control exactly half of the Senate’s 100 votes, with Vice President Harris holding the tiebreaking key.

Recent Supreme Court confirmations have been largely party-line votes, with a Republican in the White House and the GOP in charge of the Senate.

That is partly why Breyer has been under pressure from liberal activist groups and some Democratic senators to retire now, although the White House has been careful not to pile on.

Ginsburg declined to retire while President Barack Obama was in office, thinking Donald Trump would not be elected, and Democrats paid the price. After her death in September 2020, Trump and Republicans in the Senate pushed through the nomination of Amy Coney Barrett just days before Election Day, and after voters already had started to cast the votes that led to Trump’s defeat.

The increasing partisan polarization surrounding the court has been one of Breyer’s concerns, one he shares with the conservative chief justice. He addressed it this spring during a speech at Harvard Law School.

“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,” he said.

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006.