Federal Courts and Nominations

Supreme Court Justice Stephen Breyer to step down, giving Biden a chance to make his mark

WASHINGTON – Supreme Court Justice Stephen Breyer plans to step down by the end of this term after nearly three decades on the high court, a source with knowledge of his plans told USA TODAY on Wednesday. His retirement would hand President Joe Biden his first opportunity to nominate a jurist whose influence could be felt for decades.

Breyer’s announcement will kick off a frenzied process of naming and confirming a successor, typically a monthslong ordeal that in this case is likely to end with a groundbreaking nominee: Biden promised during his presidential campaign to name a Black woman to the Supreme Court for the first time in American history.

“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,” said Senate Majority Leader Chuck Schumer, D-N.Y. “He is, and always has been, a model jurist.”

Schumer said Breyer’s replacement would be confirmed “with all deliberate speed.”

Breyer did not respond to a request for comment through a court spokeswoman.

Biden declined to address questions about Breyer’s retirement during a White House event on the president’s social spending agenda, Build Back Better.

“There has been no announcement from Justice Breyer. Let him make whatever statement he wants to make, and I’ll be happy to talk about it later,” Biden said.

The news was first reported by NBC.

At 83, Breyer is the second-most senior associate justice, and his retirement was encouraged by liberals who wanted to ensure Biden’s nominee would benefit from a Senate controlled by Democrats. Breyer generally sided with the liberal justices, so whoever replaces him probably wouldn’t change the court’s conservative leanings.

Breyer’s departure will deprive the Supreme Court of its foremost proponent of a living Constitution, the notion that interpretation of the founding document can change with the times. Breyer has been an outspoken defender of the idea that justices decide cases based on their judicial philosophy, not their politics.

Nominated by President Bill Clinton in 1994, Breyer is a pragmatist, an optimist and an institutionalist who gave deference to the legislative branch but who was skeptical of executive overreach. The prolific justice wrote majority opinions striking down anti-abortion laws in Nebraska and Louisiana and scathing dissents, including in several death penalty cases.

Breyer penned some of the court’s most notable opinions in the term that ended last summer. He wrote the majority opinion thwarting the latest challenge by conservative states to the Affordable Care Act, concluding they did not have standing to sue over its mandate that most Americans obtain insurance. He wrote the court’s opinion in a major First Amendment case, siding with a former student who was punished for a vulgar social media post aimed at her school.

“But sometimes,” he said, “it is necessary to protect the superfluous in order to preserve the necessary.”

Breyer, a California native and Harvard Law graduate, is the court’s most vocal opponent of the concept of “originalism” espoused by Justice Antonin Scalia – the idea that jurists interpret the Constitution based on its meaning at the time it was written. Breyer instead embraced the idea of a “living” document that allows courts to give a more dynamic reading when it’s not clear what the framers had in mind.

“He’s an optimist about what the law can do. He’s an optimist about what the Constitution can do, and he’s an optimist about democracy and how democracy can function and how it can function on behalf of the people,” said Risa Goluboff, dean of the University of Virginia law school who clerked for Breyer during the 2001 term.

Breyer is a less doctrinaire liberal than Associate Justices Elena Kagan or Sonia Sotomayor – more willing to side with the court’s conservatives in certain law enforcement cases, for instance. In that sense, he was sometimes a conduit between the court’s liberal and conservative factions.

Biden is likely to begin the process of selecting a new Supreme Court justice as Democrats are still reeling from the impact President Donald Trump had on the federal judiciary – nominating three justices to the high court and more than 200 judges to lower courts. The Supreme Court’s 6-3 tilt makes the court the most conservative it’s been since the 1930s, when it battled with President Franklin D. Roosevelt over his New Deal policies.

Because Biden’s nominee won’t affect that balance, the president may face an easier confirmation process. Senate Republicans did away with the filibuster for Supreme Court nominees in 2017, meaning Biden will be able to get his nominee confirmed with a simple majority.

Some liberal groups pushed for Breyer to retire, mindful of Justice Ruth Bader Ginsburg’s decision not to step down before Republicans won control of the Senate in 2014. Others noted Breyer, who worked for the Senate Judiciary Committee, was well aware of the political dynamics.

Unlike Trump, who made his short list public before choosing a nominee, Biden has kept his leading candidates for the lifetime appointment to himself. As a candidate, he raised the idea of nominating a Black woman to the court before a primary in South Carolina on Feb. 29, 2020. He won the state and turned his struggling campaign around.

Assuming Biden selects a nominee from the traditional pool – that is, judges – who can serve for decades before retiring, the choices are somewhat limited by a lack of racial diversity in courtrooms. D.C. Circuit Judge Ketanji Brown Jackson, whom President Barack Obama considered for the court in 2016, is a leading candidate.

Jackson, who secured three Republican votes for her confirmation June 14, clerked for Breyer in 1999.

Leondra Kruger, a justice on the California Supreme Court who worked in the Justice Department for Obama and President George W. Bush, is also often mentioned as a possible candidate. Kruger, who worked in the solicitor general’s office, argued a dozen cases at the Supreme Court.

House Democratic Whip James Clyburn, the highest-ranking African American in Congress, suggested U.S. District Court Judge J. Michelle Childs of South Carolina for the job. Biden nominated Childs to serve on the D.C. Circuit in December.

Not only would Biden’s pledge bring the first Black woman to the Supreme Court, it would also put four women together there for the first time – along with Associate Justices Elena KaganAmy Coney Barrett and Sonia Sotomayor, an Obama appointee who is the court’s first Latina. It would be the first time two African Americans served simultaneously if Biden’s nominee joined Associate Justice Clarence Thomas.

In part because Trump and Senate Republicans were in a rush to replace Ginsburg before the election in November 2020, Barrett’s confirmation took 27 days. The median number of days between a Supreme Court nomination and final action by the Senate is 68 days, according to the nonpartisan Congressional Research Service.

Brianne Gorod, chief counsel at Constitutional Accountability Center who clerked for Breyer in the 2008 term, described him as having a “profound and abiding belief that our Constitution sets up a system of government that should work for people.”

“He therefore cares deeply about the realities against which the court is deciding cases,” she said. Those concerns “are evident in many of the opinions he has written over the years.”

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