Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday.
Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of center.
The sources spoke on condition of anonymity so as not to preempt Breyer’s eventual announcement. NBC first reported the justice’s plans.
Breyer has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.
Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also makes conservative Justice Clarence Thomas the oldest member of the court at 73.
Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina’s presidential primary in 2020.
Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.
Breyer’s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in twin cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses, but allowed one to remain on the grounds of the state capitol in Austin, Texas.
In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.
He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes had the air of an absent-minded professor. In fact, he taught antitrust law at Harvard earlier in his professional career.
He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.
Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.
And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, Breyer’s frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.
“It is not often that so few have so quickly changed so much,” Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.
His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter’s defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.
His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes. Breyer’s opinions were notable because they never contained footnotes. Breyer was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.
“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that your right; there is no such proof.”
Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a stellar academic career at Stanford, graduating with highest honors. He attended Oxford, where he received first-class honors in philosophy, politics and economics.
Breyer then attended Harvard’s law school, where he worked on the Law Review and graduated with highest honors.
Breyer’s first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department’s antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.
Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children — daughters Chloe and Nell and a son, Michael — and six grandchildren.
(AP)
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18 Responses
Oh gosh! We can’t afford for Biden to install a new justice!
Let’s see what communist Biden picks based on race or gender and not on qualifications like Obama did with Sotomayor and Kagan the Pagan.
Given his age, and that this is probably the last chance to have good conditions for a replacement he approves (by next January the Senate will probably by Republican, and in 2025 the White House may be as well), it seems rational. This guy is even older than Biden and Trump, so one should ask what he is doing working full time on a job that can be stressful and significant.
A “pragmatic force on a conservative court”? why doesn’t YWN actually write their own article?
He won’t be missed.
No change to the court, one lib leaving one lib coming.
If the GOP can stall off the approval process until after the next election when hopefully the Republicans will gain the majority in the Senate, then, maybe, just maybe there’s a chance that someone more centrist can get in. It’s a longshot though.
“President Joe Biden is poised to follow through on his campaign promise to appoint the first Black woman to the Supreme Court, as reports emerged Wednesday that Justice Stephen Breyer was set to retire.”
Aha. We all see how successful Joe was in keeping his promise to select a black woman as his Vice President. Joe is a woman of the people. Joe will heal all racial injustices by affermative action picking. Talent and competency is not required to serve in the Biden administration. It’s all about identity & gender politics. Way to go Joe. If you disagree with me, you’re a racist and a white domestic terrorist.
@ notarebba, I’m always wondering why YWN are bringing news from a so called news agency that has one agenda, to push their own Liberal agenda. Their reports are always bias and they only report what they feel will help their agenda. Its time to realize the truth and start bringing news from more reliable news agency’s.
Hopefully, this will tie up Senate for several months taking time from spending more Trillions and federalizing voting. The best plan is to send Kamala to Supreme Court (she is about 7/16th black, so might qualify), then Trump runs for House, become Speaker, Biden resigns or gets removed by 25th, and Trump becomes President, reserving ability to run for another term.
The White House has said that Biden will announce his choice next week. It is almost certain to be one of the 2 or 3 judges who have recently been confirmed to a circuit or district court with the votes of ALL 50 Dems including Manchin and Sinema and several Republicans including Murkowski, Snowe, Romney etc.
The Senate Judiciary Committee will hold hearings on the nominee in late February/early March and the full Senate will vote by the end of March/early April. There is no procedural option to delay the vote since the Republican Leader (McConnell) eliminated the filibuster for SCOTUS nominations. There are some technical delays on votes in Committee and floor votes but those delays are measured in days, not weeks or months. I’m sure some of the Trump zealots will give passionate but mindless floor speeches against ANY Biden nominee but they will be powerless to stop the confirmation, just as the Dems could not stop Trump’s nominees.
The traitors who stole 3 SCOTUS seats are surprised that they won’t get a chance to steal a fourth.
Wow.
IT’S HIGHLY PROBABLE THAT BIDEN WILL APPOINT A BLACK FEMALE TO REPLACE BREYER. THAT WOULD BE VERY “FAIR AND JUST.”
IF NOT, HE’LL B DOOMED AS A RACIST.
The WH and Schumer just indicated they will use the same confirmation process and timeline for Biden’s court nominee as McConnell used last year in considering Trump’s nomination of Amy Comey Barrett. That would mean roughly 30 DAYS from start to finish, even faster than I thought.
I’m betting on Judge KJ Jackson whose nomination to the D.C. Circuit was approved in 2021 by the Senate on a 53-to-44 vote. All the Dems and several Republicans including Trump’s best friend Lindsey Graham voted FOR her confirmation. Her paperwork is ready to go. She has great creds (Harvard Law School, clerked for Breyer etc.etc.)
Oish first Ginsburg now Breyer! Kagan will be the last Jew on the court
I see YWN has convened a roundtable of legal scholars and historians such as yaapchick, gadolhadorah and jackk to weigh in on this already so ill keep my comment brief. No way after Darth Bader Ginsburg held on to her seat too long mistakenly assuming Crooked Hillary was gonna win, are dems gonna let that happen again. This liberal jew needs to be kicked to the curb pronto, to make way for someone with more melanin and less testosterone. Legal credentials and resume are irrelevant to this dummy President. Just make sure her woke intersectional credentials are in order. Hashem Yerachaim.
Breyer was born a Jew, so he has a holy neshama trapped in him, which may yet manage to express itself before it goes home. But his children are not Jewish, and his daughter is an Episcopal priest.