Supreme Court Associate Justice Stephen Breyer Announces Retirement

Image Courtesy of FiveThirtyEight

By Jeremy Perillo

After initial reporting, the White House has confirmed that Associate Supreme Court Justice Stephen Breyer will be retiring upon the Court’s summer recess, with the condition his successor is nominated and confirmed. The most senior justice on the Court, at 83 years old, is also the senior liberal justice of the Court, an unofficial title he assumed after the death of Justice Ruth Bader Ginsburg in 2020. Breyer was nominated for the Court in 1994 by President Bill Clinton, replacing the retiring Justice Harry Blackmun.

“I’m here today to express the nation’s gratitude to Justice Stephen Breyer for his remarkable career in public service and his clear-eyed commitment to making our country’s laws work for its people,” President Joe Biden said. “I was proud and grateful to be there at the start of his distinguished career on the Supreme Court and I’m very proud to be here on the announcement of his retirement.”

Following Biden’s victory in the 2020 presidential election, as well as the newly attained 50-50 Senate that barely gives Democrats the majority, many liberals in the country began calling for Breyer’s retirement, given his advanced age. Many Democrats in the country feel scorned from prior-Majority Leader Mitch McConnell’s refusal to confirm the late Justice Antonin Scalia’s successor, nominated by President Barack Obama, in 2016. Additionally, they were concerned that if Breyer were to wait too long, he may “give” a Republican president the opportunity to add another conservative to the Court. 

The opportunity for Biden to nominate and successfully instill a younger justice to the Supreme Court seemed like a no-brainer for many Democratic voters wanting to ensure there remained an intact liberal wing. Similarly, following the death of RBG in 2020, President Donald Trump nominated Amy Coney Barrett, whose confirmation by the Senate altered the dynamic of the Court to a 6-3 conservative majority. This change has intensified the call by many to pack the Court. 

Beyond the calls to pack the bench, the Court finds itself amid intense partisan political debate, particularly over abortion. The Court has ruled on various controversial abortion bills, particularly Texas’ Heartbeat Bill, leading up to an almost inevitable reevaluation of the infamous 1973 decision in Roe v. Wade. Regardless of who is nominated and eventually confirmed to the bench, the liberal justices remain in the seeming “minority,” thus not creating any real shifts in the Court’s dynamic. 

What will shift, however, is the unofficial title that Breyer will leave for Justice Sonia Sotomayor: senior liberal justice. As cases have gotten more controversial, given the current political climate, Sotomayor has become a strong dissenter, both in the courtroom and in written dissents. This was showcased during oral argument for the Mississippi abortion ban, where she remarked on the danger for the Court given its “politically” motivated changes in rulings. Such a comment touches on the reverenced legitimacy issues the Court incurs, given its weak constitutional framework. 

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” she said. “I don’t see how it is possible.”

Biden, the former Chairman of the Senate Judiciary Committee, vowed on the campaign trail to nominate a Black woman, which, if she were to be successfully confirmed, would be a first for the Court. Several names have been thrown around as leading candidates for the Biden administration, including D.C. Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and South Carolina U.S. District Judge J. Michelle Childs.

Jackson, seen by many as the frontrunner for Breyer’s seat, was recently nominated by Biden and confirmed by the Senate for her current role as D.C. Circuit Judge; she was previously a District Court Judge for D.C. The vote in the Senate was 53-44 with Republicans Susan Collins (ME), Lisa Murkowski (AK), and Lindsey Graham (SC), voting in support of her nomination.

Since there have been filibuster rule changes for Supreme Court nominees, a simple majority is all that’s needed. It is expected that all Democrats will be voting for Biden’s nominee, with the addition of some Republican hopefuls. Susan Collins voted for both Sotomayor and Justice Elena Kagan, as did Lindsey Graham. 

Graham, after the news broke, released a statement praising Breyer’s public service and issuing an ominous warning to other Republicans.

“If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” he said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

While only time will tell which, if any, Republicans support Biden’s nominee, Senate Democratic leadership has made clear that hearings will be held promptly and efficiently. Any concern the Democrats may have about this confirmation process does not rest in the floor vote itself, but in the committee vote. The Democrats will need Republican cooperation to get the nomination out of an evenly divided Judiciary Committee.

There will undoubtedly be Republican opposition to Biden’s nominee. What is yet to be seen is the level of resistance the administration faces. There are Republicans in the Senate who will use this opportunity to paint the nominee in varying depictions, regardless of their validity, in hopes of garnering political points. Democrats will also hope to use their nominee to win political points given the President’s poor approval ratings and assumed loss of the House majority in November. Regardless, both parties will have an opportunity to use the confirmation hearings in an intransigent manner amidst a contentious midterm election year.