Stephen Breyer Retiring From Supreme Court—Paving Way For Biden’s First Nominee

Topline

U.S. Supreme Court Justice Stephen Breyer will retire from the bench this year after more than 25 years, multiple outlets report, opening up a vacancy on the court for President Joe Biden to fill while Democrats have narrow control in the U.S. Senate to confirm his chosen nominee.

Key Facts

Breyer will reportedly retire this summer at the end of the current Supreme Court term, NBC first reported, citing anonymous sources “familiar with his thinking.”

Breyer had been under significant pressure to retire by many Democrats and judicial activists, with Rep. Mondaire Jones (D-N.Y.) telling Cheddar News in April there was “no question” the justice should retire at the end of the Supreme Court term.

Activist group Demand Justice had launched a “Breyer Retire” campaign urging the justice to step down immediately to ensure Biden could appoint his chosen nominee without Republican interference and that the left-leaning Breyer would be replaced with a Democratic appointee.

The Senate is evenly split with 50 Democrats and Republicans, giving Democrats narrow control by virtue of Vice President Kamala Harris’ tie-breaking vote—meaning if one Democrat can unexpectedly no longer serve, Republicans would have the majority again, making the need for Breyer’s departure from the court more urgent in Democrats’ eyes.

Breyer had not previously given any indication he had planned to retire or commented on his retirement plans, and did not mention the topic during a recent address at Harvard Law School in which he advised Democrats not to add additional justices to the court.

Big Number

27. That’s how many years Breyer will have served on the Supreme Court, after being sworn in as a justice in August 1994.

Key Background

Prior to being appointed to the Supreme Court by President Bill Clinton in 1994, Breyer served as counsel to the Senate Judiciary Committee and as an assistant special prosecutor on the Watergate scandal before being appointed to the U.S. Court of Appeals for the First Circuit by President Jimmy Carter in 1980, where he served as a judge until he ascended to the high court. Viewed as a moderately left-leaning and pragmatic justice, Breyer’s opinions for the court include delivering the majority opinion in multiple rulings, striking down abortion restrictions as unconstitutional in Stenberg v. Carhart and June Medical Services LLC v. Russo, and National Labor Relations Board (NLRB) v. Noel Canning, which limited presidents’ ability to make recess appointments while the Senate is out of session. The pressure for Breyer to step down came after Justice Ruth Bader Ginsburg had previously refused to heed calls for her to step down while President Barack Obama was in office—which resulted in her eventually being replaced by the right-leaning Justice Amy Coney Barrett when she died in September.

What To Watch For

While it’s still unclear who Biden will name to replace Breyer, the president has said he intends to appoint a Black woman to the Supreme Court—the first in the court’s history. The president and Senate will have until the court’s next term convenes on October 3 to appoint and confirm Breyer’s successor.

Further Reading

Progressives Demand ‘Breyer Retire’ So Biden Can Appoint Supreme Court Justice (Forbes)

Justice Stephen Breyer Urges Against Expanding The Supreme Court As Biden Weighs Options (Forbes)

Progressives Want Breyer To Retire—But Supreme Court Justices Are Sticking Around Longer Than Ever (Forbes)

‘It would be glorious’: hopes high for Biden to nominate first Black woman to supreme court (The Guardian)