By James Langford | January 26, 2022 | News & Features
Justice Stephen Breyer, the senior member of the Supreme Court’s liberal wing, will retire at the end of the current term in June, giving President Biden the chance to choose a successor before mid-term elections in which Democrats’ Congressional majorities are threatened.
Breyer, 83, was appointed by President Clinton in 1994. A former Harvard Law professor, he also served as chief judge for the 1st Circuit U.S. Court of Appeals, an assistant attorney general and an assistant special prosecutor for the Watergate Special Prosecution Force.
The justice was named a Lawdragon Legend after earning a spot among the 500 Leading Lawyers in America 10 times since the company’s founding in 2005.
“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,” Democratic Senate Majority Leader Chuck Schumer said in a statement promising prompt consideration of Biden’s nominee. “He is, and always has been, a model jurist.”
Breyer’s retirement has been the subject of speculation since Biden’s term began in January 2021 with a razor-thin Democratic majority in the Senate, which must confirm any court appointee.
Should Republicans regain control of the chamber this fall, the president's ability to make an appointment afterward is uncertain at best.
In 2016, former Republican Senate Majority Leader Mitch McConnell blocked consideration of former Democratic President Obama’s nomination to succeed Justice Antonin Scalia, an outspoken conservative and constitutional originalist.
That gave former President Trump the chance to appoint three justices, one of them only a month before voters would weigh in on his reelection bid, despite Republicans rejecting Obama's nomination in February 2016 as too close to a presidential election.
The 6-3 conservative majority that resulted has refused to block a Texas law that prohibits abortion as early as six weeks into a pregnancy, far short of the standard of about six months established in 1973’s Roe v. Wade decision, and is considering a separate case from Mississippi that could overturn the landmark ruling altogether.
Replacing Breyer with a liberal justice wouldn't change the power structure on the high court's bench but could preserve the influence that the justices appointed by Democrats retain.
It would also make shifting the ideological balance easier in the future, influencing potential decisions on hot-button topics from gun regulation to campaign finance and gay rights.
"If Hillary Clinton had been elected in 2016 and selected three justices, the court would have a 6-3 liberal majority now, and this appointment would keep that," said Erwin Chemerinsky, a constitutional law scholar and dean of the law school at the University of California, Berkeley. "With a 6-3 Republican majority, not losing another seat is crucial, and keeping it, hopefully, in progressive hands for the next several decades becomes so important."
The long view, in other words, is at least as significant as -- if not more than -- the short-term effects.
The youngest of the current justices, Amy Coney Barrett, was 48 when Trump appointed her in 2020. If she served only until the age at which Breyer is retiring, she would remain on the bench until 2055.
Many justices have held office until they were even older, however: Oliver Wendell Holmes was 90 when he retired in 1932.
Former Chief Justice William Rehnquist and Justice Ruth Bader Ginsburg, whom Barrett succeeded, died in office at the ages of 85 and 87, respectively.
Justice Clarence Thomas, the oldest member of the court's conservative bench is 73, a decade younger than Breyer.
Because of the narrow Democratic majority, simply winning confirmation for Breyer's successor will require either the backing of all 50 members of the party's caucus plus a tie-breaking vote from Vice President Kamala Harris or support from some Republicans.
The chamber eliminated the filibuster rule for Supreme Court nominees -- which required a majority of at least 60 votes -- to confirm President Trump's nomination of Neil Gorsuch in 2017.
Biden, Trump's successor, has the opportunity to "nominate someone who will bring diversity, experience and an even-handed approach," Senate Judiciary Committee Chairman Dick Durbin said in a statement Wednesday, promising to shepherd the nominee through the panel's approval process "expeditiously."
The question is whether Biden will choose a moderate, hoping to ease confirmation in a sharply divided Senate, or someone with a more liberal background.
Speculation so far has focused on jurists including Ketanji Brown-Jackson of the federal Court of Appeals for the District of Columbia Circuit and California Supreme Court Justice Leondra Kruger, Chemerinsky said.
"Assuming he picks somebody with impeccable credentials, whoever it is is going to get confirmed," he added, noting that either Kruger or Brown-Jackson could win at least some GOP votes.
White House Press Secretary Jennifer Psaki declined to characterize a potential nominee on Wednesday or comment on the timetable for an appointment, noting that Breyer had yet to make an official announcement. A Supreme Court spokeswoman didn't immediately return a message seeking more information.
Still, Biden "has stated and reiterated his commitment to nominate a Black woman to the Supreme Court and certainly stands by that," Psaki said. "He has nominated a historic number of judges who are people of color, a majority of the judges he has nominated are women, and that speaks to his desire and interest in having courts around the country that look like America and represent the experiences of Americans."
Republican senators, who joined Democrats Wednesday in thanking Breyer for his service, were less upbeat about what comes next.
"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," said GOP Sen. Lindsey Graham.
A Judiciary Committee member, Graham promised in 2016 to give Supreme Court nominations from a Republican president in the run-up to an election the same short shrift he gave to Obama's selection of now-Attorney General Merrick Garland.
When the opportunity arose, however, he changed his mind and voted to confirm Barrett to succeed Ginsburg, a stalwart liberal, just a week before Trump lost the general election to Biden.
"Elections have consequences," Graham observed Wednesday, "and that is most evident when it comes to filling vacancies on the Supreme Court."