Justice Stephen G. Breyer will retire at the end of the Supreme Court’s current term, giving President Biden a chance to reinforce its liberal minority and deliver on his campaign pledge to make history by nominating the first African American female justice.
As he promoted a book at the end of the summer and in early fall, Breyer came up with a standard reply when asked about retirement: “I don’t think I’m going to die here — I hope,” Breyer told The Washington Post. “There are a lot of considerations, and I’ve mentioned health, I’ve mentioned the considerations of the court. I’m aware of what’s in the newspapers.”
It had been expected that Breyer would retire this term, but the timing of an announcement was unknown. The Supreme Court would not comment, but the justice is expected to meet with Biden at the White House on Thursday, according to a person familiar with the matter who spoke on the condition of anonymity, citing the situation’s sensitivity.
Biden was informed last week of Breyer’s plans, the person said, and the White House began to call senators about the news on Wednesday. NBC News was the first to report Breyer’s intentions.
A replacement chosen by Biden would not change the court’s conservative supermajority; Breyer is one of only three liberal justices. But it would give Biden the chance to have his nominee considered by a more favorable Senate and mean a younger colleague for the court’s other liberals, Sonia Sotomayor, 67, and Elena Kagan, 61.
Senate Majority Leader Charles E. Schumer (D-N.Y.) indicated that Biden’s eventual nominee would be considered and confirmed “with all deliberate speed.” His Republican counterpart, Minority Leader Mitch McConnell (Ky.), demurred when asked Wednesday whether the GOP intends to try to block Biden’s pick, as it did in 2016 with President Barack Obama’s final nominee to the court, Merrick Garland. “We don’t know who the nominee is yet,” McConnell said at an event in Bowling Green, Ky.
The crucial difference now is that Republicans no longer control the Senate.
While senators and interest groups reacted to the news with bouquets and the occasional brickbat, Biden declined to get ahead of Breyer’s announcement.
“Every justice has the right and opportunity to decide what he or she is going to do and announce it on their own,” the president said. “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.”
Biden’s pledge to nominate an African American woman is a first. There have been 108 White men on the court and only two Black men — Thurgood Marshall and Clarence Thomas. There have been five women — Sandra Day O’Connor, Ruth Bader Ginsburg and three current members: Sotomayor, Kagan and Justice Amy Coney Barrett.
There have never been four women serving at the same time on the nine-justice court, and the next version of the court headed by Chief Justice John G. Roberts Jr. seems likely to be the most diverse in the court’s history.
The two potential replacements for Breyer most often mentioned are Judge Ketanji Brown Jackson, a former Breyer Supreme Court clerk who in June was confirmed to join the U.S. Court of Appeals for the D.C. Circuit, and California Supreme Court Justice Leondra Kruger, a former Justice Department official who has represented the government at the Supreme Court as deputy solicitor general.
Others will surely be added to the list, and Biden probably will cast a wide net. There are few Black women on the federal appellate court bench, the traditional spot from which Supreme Court nominees are chosen.
On the current court, only Kagan did not serve previously on an appeals court.
It seems likely that Breyer will make his leaving the court contingent on the confirmation of a successor. Exactly how that will work is unclear — the court is at about the midpoint of its schedule for hearing cases, and aims to have its work completed by the end of June.
Senior Senate aides said there is precedent for completing the confirmation work on a judge before the seat is officially vacant.
Breyer was chosen for the court the year after Clinton picked Ruth Bader Ginsburg — Breyer interviewed for that opening, too, but he was in pain from a bicycle accident and reportedly the meeting did not go that well.
Breyer is a native Californian who served on the U.S. Court of Appeals for the 1st Circuit in Boston. He is an intellectual who reads and writes in French and has an abiding interest in architecture. But he also often seemed like a talkative law professor, his long and winding questions sometimes leaving counsel struggling to grasp his point.
Once when a lawyer confessed that he didn’t understand what Breyer was getting at, the justice acknowledged with a smile that he was afraid of that.
He is known as a pragmatic liberal, more moderate than others on the left and willing to search for compromise among the court’s ideologically divided justices. In that way, he and Kagan sometimes departed with Ginsburg and Sotomayor on the details of a case. One of his favorite colleagues was O’Connor, the court’s ultimate pragmatist.
He was part of the court’s compromise with Roberts that saved Obamacare in 2012. He was less willing than some liberals to side with criminal defendants.
“Justice Breyer hasn’t always ruled for us, but he has always earned our respect,” said David Cole, national legal director of the American Civil Liberties Union.
The term that ended last summer was one of the most productive and significant in Breyer’s career, and he received some of the top assignments from Roberts.
Breyer wrote the majority opinion when the court rejected the third challenge at the Supreme Court to the Affordable Care Act. Earlier, he wrote the court’s decision that Google did not violate copyright law in a multibillion-dollar showdown with Oracle, a closely watched case in the tech world.
And he wrote the court’s defense of the First Amendment rights of public school students in a case involving a high school’s punishment of a cheerleader for a profane rant on social media.
Though he might be closer to the center than his liberal colleagues, he is almost always a reliable vote on the left on issues such as affirmative action, gun rights and abortion, where he wrote some of the court’s most important opinions protecting abortion rights.
He is relentlessly optimistic and cheerful, and only occasionally did that persona slip. One occasion was the end of the first full term with Roberts as chief justice and Samuel A. Alito Jr. taking O’Connor’s seat. Liberals suffered through several defeats, including one that struck down voluntary school desegregation plans in Seattle and Louisville.
“It is not often in the law that so few have so quickly changed so much,” Breyer said in a lengthy dissent from the bench. He predicted it would be a decision “that the court and the nation will come to regret.”
In 2015, after years of hearing cases about how to fairly administer capital punishment, Breyer said in effect that he had decided it could not be done. He called for the court to reconsider the constitutionality of the death penalty. Only Ginsburg joined his call.
It is also likely that his former colleague played a part in his decision to leave now.
Ginsburg declined to retire while President Barack Obama was in office, thinking Donald Trump would not be elected, and Democrats paid the price. After her death in September 2020, Trump and Republicans in the Senate pushed through the nomination of Barrett just days before Election Day, and after voters already had started to cast the votes that led to Trump’s defeat.
The increasing partisan polarization surrounding the court has been one of Breyer’s concerns, one he shares with the conservative chief justice. He addressed it this spring during a speech at Harvard Law School.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
A decision to retire now, when a like-minded president has a chance to name a like-minded successor, could feed that view. But history shows retiring justices do just that.
Breyer’s plan is “the latest in the modern trend of politically timed retirements at the Supreme Court,” said Gabe Roth, executive director of the group Fix the Court. “While we know Breyer is a true believer that the court is an independent, apolitical institution, the nomination and confirmation scheme as it currently exists makes that an impossibility.”
The justice faced unprecedented pressure to leave, especially after Ginsburg’s example of what could go wrong.
Hecklers interrupted a book interview at the Smithsonian with signs calling for him to retire. A Twitter account issued daily reminders that he had not signaled his intentions. A truck circled the Supreme Court with a sign telling him to pack up. “I wasn’t here,” Breyer said with a smile when it was brought up during an interview.
In an interview with the New York Times in August, Breyer acknowledged having a sympathetic president in office might factor into his decision. By the next day, he indicated in the interview with The Post that he regretted getting into it.
At the end of last term, Breyer already knew that the court was going to be taking on some of the issues about which he cared and that probably influenced his decision to stay.
The court is facing the most serious threat to Roe v. Wade in decades, an important case that could undermine some state and local gun-control laws, and challenges to the government response to the pandemic.
Breyer has seemed occasionally irritable on the bench, and unhappy about being outnumbered by the conservative majority — for instance, on the issue of a Texas law that, in Breyer’s view, unconstitutionally impairs the right to abortion before fetal viability.
He has written dissents three times as the case has come to the Supreme Court. He declared it “unbelievable” that the court was being asked to set aside the Biden administration’s plan for vaccine-or-mask mandate for the country’s largest employers. The majority did exactly that.
Breyer has at times been salty — for a justice on the bench. “You better be damn sure,” he warned his colleagues during the hearing on a restrictive Mississippi abortion law, when considering whether to overturn a landmark precedent such as Roe.
One Democrat active in liberal legal circles said the White House seemed to think it might hear something from Breyer in December, but that didn’t happen.
It is rare for a justice to make their intentions known so early. Among recent departures from the court, Justice Anthony M. Kennedy announced his retirement in June 2018. John Paul Stevens announced his departure in April, David Souter in May. O’Connor made her July retirement announcement contingent on a replacement being confirmed, and served another six months.
Mike DeBonis, Seung Min Kim, Ann E. Marimow and Tyler Pager contributed to this report.