Federal Courts and Nominations

Breyer to retire from Supreme Court

Justice Stephen Breyer is planning to retire from the Supreme Court, according to multiple reports, ending a nearly three-decade career on the bench and clearing the way for Democrats to seat the liberal jurist’s replacement on the 6-3 conservative majority court.

The move caps off months of will-he-or-won’t-he speculation and growing calls from the left for the 83-year-old Clinton nominee to make way for a rejuvenated liberal wing and more diverse bench.

The development, which was first reported by NBC News, comes amid a blockbuster term which could see the justices rein in federal abortion rights enshrined in Roe v. Wade and expand the Second Amendment.

The timing of Breyer’s departure is consistent with the modern trend of Supreme Court justices stepping down when the White House is controlled by the same party behind their nomination, a dynamic known as “strategic retirement.”

With Democrats holding a razor-thin majority in the Senate, the question of Breyer’s possible retirement had gripped Washington, particularly liberal activists and progressive lawmakers.

Many liberals had pointed to the late Justice Ruth Bader Ginsburg’s death in September 2020 and subsequent confirmation of conservative Justice Amy Coney Barrett in the waning days of the Trump administration as a cautionary tale for Breyer, and urged him to avoid what they view as Ginsburg’s severe miscalculation.

“I’m sure Breyer realizes what a blow Justice Ginsburg’s non-retirement was to the possibility of ever having an even mildly progressive Court in our lifetime,” Dan Kobil, a law professor at Capital University, told The Hill in a previous interview. “And that describes Breyer — mildly progressive.”

The White House, for its part, had sought in public remarks to avoid any appearance of the president wielding influence over Breyer’s decision.

At the same time, though, President Biden has made no secret of his desire to diversify the bench, pledging during the 2020 campaign to nominate the first Black female Supreme Court justice. Many believe that one person on his short list is Judge Ketanji Brown Jackson, a former Breyer clerk who was recently confirmed to the D.C. Circuit Court of Appeals.

Breyer’s announcement may take some by surprise, given that by all outward indications, he still enjoyed the job. Yet other court watchers said that after Breyer’s lengthy and distinguished career on the bench, he no longer needs to prove anything.

Brianne Gorod, a former Breyer clerk who now serves as chief counsel at the progressive nonprofit firm Constitutional Accountability Center, told The Hill in a previous interview that Breyer’s mark on American law is already visible.

“An important part of Justice Breyer’s legacy will be his broader ideas about our system of government and the role of the courts in that system of government. … He believes the courts should be attuned to the real-world context in which they are acting, as well as the consequences that their decisions will produce,” she said. “These ideas are evident in not only his extra-judicial writings, but in many of the opinions he has written over the years.”

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