WASHINGTON (CN) — Justice Stephen Breyer will be retiring from the Supreme Court at the end of the term, according to Wednesday morning reporting from NBC.
Appointed by former President Bill Clinton in 1994, Breyer stands at the court’s oldest member at 83 and one of only three liberals on the supermajority conservative court.
Republicans achieved that balance in large part because former President Donald Trump was in office at the time of the death of Justice Ruth Bader Ginsberg, who long refused pressure to retire amid multiple health scares. Liberal activists in turn have hounded Breyer to forge a different path and retire while a Democrat remains in the White House to appoint his successor.
Replacing Breyer would not shift the court ideologically, as happened with Ginsberg’s replacement, Justice Amy Coney Barrett, but would prevent conservatives from further cementing their control of the court. According to reporting, Breyer will stay on until his successor is appointed.
President Joe Biden pledged to name an African American woman to the court during his 2020 campaign. While the White House has yet to officially comment on contenders for the position, D.C. Circuit Judge Ketanji Brown Jackson and Justice Leondra R. Kruger of the California Supreme Court have been speculated to be at the top of the list.
During his 28 years on the bench, Breyer was known for being a pragmatic justice with longwinded hypotheticals. Last term he wrote notable majority opinions including protecting the free speech rights of a high school student and shooting down a challenge to the Affordable Care Act.
Breyer recognized that not everyone would agree with every decision the court made but stressed that it shouldn’t be seen as political.
“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 the other branches,” Breyer told an audience at Harvard Law School in 2021.
Senate Majority Leader Chuck Schumer weighed in on Breyer’s retirement on Wednesday.
"For virtually his entire adult life, including a quarter-century on the U.S. Supreme Court, Stephen Breyer has served his country with the highest possible distinction,” Schumer said in a statement. “He is, and has always been, a model jurist. He embodies the best qualities and highest ideals of American justice on the biggest issues of our time — including voting rights, the environment, women's reproductive freedom, and most recently, health care and the Affordable Care Act — were hugely consequential. America owes Justice Breyer an enormous debt of gratitude."
Schumer also commented on the nomination timeline for Breyer’s replacement.
"President Biden's nominee will 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," Schumer said.
Chair of Senate Judiciary Committee Dick Durbin, who will oversee the nomination, thanked Breyer for his service and said he looked forward to moving the new nominee through the committee.
"With this Supreme Court vacancy, President Biden has the opportunity to nominate someone who will bring diversity, experience and an evenhanded approach to the administration of justice,” Durbin said on Twitter. “I look forward to moving the President’s nominee expeditiously through the committee."
In order to push through the nomination of Justice Neil Gorsuch after Republicans denied former President Barack Obama his chance to appoint a replacement for the late Justice Antonin Scalia, Senate Republicans nixed the filibuster for Supreme Court nominees. Senate Democrats — who control the majority with 50 senators plus Vice President Kamala Harris’ vote — will be able to appoint Breyer’s replacement without any Republican votes.
Republican South Carolina Senator Lindsey Graham spoke to this Wednesday, stressing that Democrats should not expect any bipartisanship for whomever is appointed.
“Justice Breyer has always shown great respect for the institution and his colleagues, and I wish him well in the next phase of his life,” Graham said in a statement. “As to his replacement: If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
The White House has so far declined to comment on Breyer’s retirement or any protentional nominees to fill his seat on the bench.
“It has always been the decision 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 wrote on Twitter. “We have no additional details or information to share from @WhiteHouse.”
A San Francisco native, Breyer got his undergraduate degree from Standford University, his master’s from Magdelen College at Oxford, and his law degree from Harvard Law School where he would eventually teach. Breyer first gained exposure to the court when he served as a law clerk for Justice Arthur Goldberg in 1964.
Breyer worked in the U.S. Attorney General’s Office, on the Watergate Special Prosecution Force, and as special counsel of the Senate Judiciary Committee. Before being nominated to the high court, he would serve on the First Circuit and as a member of the Judicial Conference.
When Breyer was nominated by Clinton, Biden, a senator at the time, presided over his confirmation hearings.
As a justice, Breyer has been a reliable, if somewhat moderate, vote for the left-wing on issues concerning abortion, gun rights, and campaign finance.
Breyer was known for a noteworthy 2015 dissent in Glossip v. Gross in which he questioned the constitutionality of the death penalty.
“Justice Breyer has long been a voice and a vote for civil liberties, human dignity, the right to vote, and good governance,” ACLU National Legal Director David Cole said in a statement. “In the best tradition of a justice, he has paid careful attention to the implications of the court’s rulings for ordinary people and for the administration of justice. From protecting abortion rights to indicting the death penalty to safeguarding free speech and civil rights, Justice Breyer has demonstrated his commitment to the Constitution’s highest ideals. Justice Breyer hasn’t always ruled for us, but he has always earned our respect.”
This story is developing…
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