Supreme Court Justice Stephen Breyer to retire
One of the three liberal justices plans to retire, giving Joe Biden an opportunity to shore up the court’s liberal wing.
Justice Stephen Breyer plans to retire at the end of the current Supreme Court term, giving President Biden an opportunity to shore up the court’s liberal wing for decades to come and deliver on his promise to nominate the court’s first Black woman.
The justice’s intention was confirmed by Senate Majority Leader Chuck Schumer and two other people familiar with the matter. Senate Democrats said they would move quickly to fill the vacancy created by Justice Breyer, a 1994 Clinton appointee who is 83 years old.
“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Mr. Schumer said.
The justice’s plans have been a focus of Democratic concern since the September 2020 death of Justice Ruth Bader Ginsburg allowed Republicans to replace a liberal stalwart with a young conservative, Justice Amy Coney Barrett. The GOP move, over vigorous Democratic protest, cemented a solid 6-3 conservative majority just before Democrats recaptured the power to appoint and confirm justices with a victory in the presidential election and a majority in the Senate.
Justice Breyer is the court’s oldest member, and some liberals have called for him to step down while Mr. Biden can appoint a like-minded jurist, rather than risk another seat falling into conservative hands should Republicans recapture the White House or Senate before he leaves the court.
NBC News earlier reported Justice Breyer’s plans.
Mr. Biden declined to comment on Justice Breyer’s retirement. “Every justice has the right to decide what he or she is going to do and announce that on their own,” he told reporters at the White House. “There has been no announcement from Justice Breyer. Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.” While also declining to comment on Justice Breyer’s retirement, White House press secretary Jen Psaki said Mr. Biden “has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that.” The Supreme Court spokeswoman had no comment. A formal announcement of Justice Breyer’s plans was expected by Thursday.
Recent months have seen the conservative majority prevail over the objections of Justice Breyer and others liberals on the court, including this week’s announcement that the court would review precedents permitting affirmative action in college admissions.
The court’s current term, which is likely to end in June, will also bring a decision on abortion rights as recognized by the 1973 decision Roe v. Wade, which the justices could limit or overrule in a pending case.
There are indications that retirement wasn’t an easy choice for Justice Breyer, who has remained an active participant in the court’s proceedings and maintained a vigorous public schedule, writing books and speaking to legal organizations and student groups. Justice Breyer hasn’t made public any particular health issues.
Justice Breyer has championed the court’s independence from politics and spoken out against proposals by some Democrats to dilute conservative power by expanding the court with additional seats Mr. Biden could fill. The public campaign pushing Justice Breyer to go may have increased his reluctance to step down, for fear of suggesting that strategic objectives, rather than personal considerations, motivated his decision.
Still, months of sometimes strident demands from the left -- one pressure group hired a billboard truck to drive around Capitol Hill with the message, “Breyer, retire” -- didn’t go unnoticed.
“It isn’t really true that I was born on Pluto and don’t know what’s going on in the world. I think I do,” he told The Wall Street Journal in a September interview.
Justice Breyer’s influence at the Supreme Court has grown since Justice Ginsburg’s death, when he became the de facto leader of the court’s liberal wing, encompassing two Obama appointees, Sonia Sotomayor and Elena Kagan. Under the institution’s customs of seniority, Justice Breyer assigns the lead dissent in ideologically divided cases. In the rare event that he votes in the majority over the dissent of Chief Justice John Roberts and the senior associate justice, Clarence Thomas, he assigns the opinion of the court itself.
That seniority gave him the chance to write some prominent majority opinions in the 2020-21 term, rejecting a Texas-led challenge to the Affordable Care Act; upholding as fair use Google’s replication of code copyrighted by Oracle Corp.; and limiting the power of school administrators to police student expression off campus.
But this term, Justice Breyer’s approach appeared increasingly beside the point to a confident conservative supermajority of 6-3. Over liberal objections, the court quickly killed Biden administration initiatives to combat the Covid-19 pandemic, such as a workplace vaccination-or-test requirement and an eviction moratorium for renters, and assembled a docket fulfilling many longstanding conservative objectives, including cases that could expand access to guns, curb federal environmental protections and limit the power of independent agencies such as the Federal Trade Commission.
Known as a pragmatic and consensus-oriented jurist, Justice Breyer appeared to recognize the diminished power the court’s liberals now possessed. Rather than rant against the prevailing winds, he initially sought compromise with Chief Justice Roberts and other conservatives willing to give him a seat at the table.
Over his tenure, that approach bore fruit. Last year, for instance, he helped moderate the court’s decision that Catholic Social Services was entitled to a carve-out from a nondiscrimination clause in its foster-parent screening contract with the city of Philadelphia, allowing it to turn away same-sex couples without forgoing taxpayer funds. Liberals joined Chief Justice Roberts’s six-justice majority opinion that gave the religious organization a win without breaking much ground in legal doctrine; three more conservative justices would have gone further, overruling a 1990 precedent that generally disallows religious exemptions from across-the-board laws.
That result echoed a watershed Affordable Care Act decision in 2012. Justice Breyer, along with Justice Kagan, joined Chief Justice Roberts’s opinion invalidating a provision of the law requiring states to choose between expanding eligibility for Medicaid or withdrawing entirely from the joint federal-state program that provides health insurance for the poor. The chief justice, in turn, joined the four liberals then on the court to uphold the rest of the healthcare overhaul, preserving President Barack Obama’s signature legislative achievement.
--Sabrina Siddiqui contributed to this article.
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