Federal Courts and Nominations

Stephen Breyer to retire from Supreme Court

Media reports confirm first vacancy on high court of Joe Biden’s presidency

Justice Stephen G. Breyer is retiring from the Supreme Court, which sets the stage for President Joe Biden to nominate what could be the first Black woman justice and yet another contentious Senate confirmation process.

The news was first reported by NBC News, and followed quickly by the Associated Press, New York Times, NPR and other media. Breyer is expected to finish out the current court’s term before stepping down, according to NBC. A tweet from White House Press Secretary Jen Psaki stated that “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. We have no additional details or information to share from @WhiteHouse.”

Breyer, 83, proved a reliably liberal vote at a high court that was always dominated by conservatives during his 27-plus years there, which sharply limited his chances to write landmark majority opinions.

His relatively centrist ideology and focus on the practical aspects of a case also meant the more smoldering high-profile ideological dissents were written by other members of the liberal wing of the court.

But the one-time Senate staffer made his mark during oral arguments with often lengthy hypotheticals, and a relentless interest on the real-world effect of the court’s decisions.

He wrote opinions that wiped out former President Barack Obama’s recess appointments to a national labor board in 2014, and struck down Texas’ restrictive laws on abortion clinics in 2016.

Breyer also wrote the court’s decision in June that kept the 2010 health care law intact in a challenge from Republican-led states and the Trump administration — the third major legal threat to Obama’s signature law.

Biden will not be able to alter the overall ideological balance of the court, where conservatives have had a 6-3 advantage after former President Donald Trump’s three appointments in four years.

But Biden’s choice would put a much younger and likely more liberal justice on the court, one who might bring a vastly different professional background than Breyer.

Still, legal experts and lawmakers don’t expect a Biden justice to create major changes in the broader direction of the court or the nation’s legal landscape. The Supreme Court’s conservative majority still is expected to move the court rightward on issues such as civil rights, gun control, and particularly the protections flowing from Roe v. Wade, the landmark 1973 decision that legalized abortion.

Biden was the Senate Judiciary Committee chairman for Breyer’s confirmation hearing in 1994. A spokesman for the president said during the transition that Biden “will nominate the first Black woman to the Supreme Court.”

Court watchers narrow that down on two Black women judges: Ketanji Brown Jackson of the federal appeals court in Washington, and Leondra Kruger of the Supreme Court of California. But the White House will likely cast a wider search.

Biden’s forthcoming pick faces a Senate confirmation process controlled by Democrats. That means it now takes only a majority vote to move a nominee through the confirmation process, and several Republicans could join them on a Biden pick.

The future vacancy comes with the Senate evenly divided between Democrats and Republicans in a power sharing agreement, and after five years of all-out acrimonious partisan conflict over Supreme Court nominees. Every vote will matter, and outside groups are expected to flood the process to boost or block the confirmation.

The Senate Judiciary Committee would cast a tie vote if it splits along party lines. And Vice President Kamala Harris would have to break any 50-50 tie on the Senate floor for a confirmation vote.

Congress might miss Breyer, who has had a friendly ear for lawmakers since former President Bill Clinton appointed him to the Supreme Court in 1994. Breyer had experience working for the legislative branch on Capitol Hill, as Senate Judiciary Committee counsel in 1979-80 for Sen. Edward Kennedy, D-Mass.

That sometimes influenced some of his decisions. It was Breyer’s questions about the commonplace interactions of elected officials and their constituents that became the central theme in the court’s unanimous 2016 ruling to overturn the public corruption convictions of former Virginia Republican Gov. Bob McDonnell.

Breyer is among justices who tend to look at the legislative history of a law and find it can be illuminating, and was among the least likely of the justices to vote to strike down a federal law, Supreme Court experts say.

When deciding cases, he was known for resolving issues without sweeping pronouncements, writing his opinions to constrain how a law functions in the real world for the specific set of facts in a specific case. The typical word associated with articles about Breyer is “pragmatic.”

His former clerks say his instinct has been to build bridges and consensus among the justices. That moved him closer to the court’s ideological center than the other liberal justices. Breyer was the justice most frequently in the majority in the 2014-15 term.

Breyer also guarded the court’s reputation and proper role, as political winds blew strongest both behind the scenes and in speeches and outside writing. He made several gestures to show comity on the court, as it worked shorthanded in the wake of Justice Antonin Scalia’s death in February 2016 when Senate Republicans declined to consider Obama’s nominee for that vacancy.

Breyer used a speech last year at Harvard Law School to warn lawmakers that expanding the number of justices would erode public trust in its decisions — a change several Democratic lawmakers have proposed.

The Supreme Court’s authority depends on “a trust that the court is guided by legal principle, not politics,” Breyer said on April 6. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

Breyer wrote three books that explored his thoughts on how judges should approach their work: one backing the consideration of foreign laws, one on how to interpret the Constitution, and one titled, “Making Democracy Work: A Judge’s View.”

“I think his greatest contribution lies in his broader ideas about our system of government and the role the courts play in that system,” said Brianne Gorod, a former Breyer clerk now at the Constitutional Accountability Center.

“Justice Breyer is a pragmatist who believes deeply that our Constitution was adopted to establish a government that would work for the American people, and that belief shapes the way he approaches legal questions.”

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