Supreme Court Justice Stephen Breyer plans to retire, paving the way for Biden pick

Washington — Justice Stephen Breyer, the senior member of the Supreme Court’s liberal wing, plans to retire after nearly 28 years on the bench, giving President Biden the opportunity to make his first appointment to the nation’s highest court, one that is poised to be historic.

Multiple sources, including two White House officials and a senior Democratic congressional staffer, confirmed Breyer’s intention to step down to CBS News. The move comes after a months-long campaign from progressives that began after Mr. Biden assumed office urging him to retire and allow the president to name a successor while Democrats hold a slim, and fragile, majority in the Senate. 

While Breyer’s retirement will not alter the ideological makeup of the Supreme Court, as Breyer is likely to be replaced by a fellow liberal jurist, it does position Mr. Biden to name a new justice who can serve for decades if confirmed by the Senate.

The president has repeatedly vowed that if a vacancy on the high court were to arise during his presidency, he would name the Supreme Court’s first Black woman justice. Judge Ketanji Brown Jackson, tapped by Mr. Biden to the influential U.S. Court of Appeals for the District of Columbia Circuit, is considered to be a top contender for the Supreme Court. Jackson was confirmed to the D.C. Circuit in June with support from three Republicans, and previously clerked for Breyer. California Supreme Court Justice Leondra Kruger is also considered a frontrunner to fill a vacancy on the nation’s high court.

News of Breyer’s retirement comes as the 2022 midterm election campaign begins to heat up, and Democrats are working to maintain their hold on both chambers of Congress. Democrats currently hold just 50 seats in the evenly split Senate, with Vice President Kamala Harris casting tie-breaking votes, meaning all Democratic senators will need to support Breyer’s replacement in order to secure confirmation without relying on GOP backing. Supreme Court justices can be confirmed by a simple majority vote.

NBC News first reported Breyer’s plans to step aside on Wednesday. White House press secretary Jen Psaki said the White House would have no additional information regarding Breyer’s retirement.

“It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today,” she tweeted.

Senate Majority Leader Chuck Schumer lauded Breyer as a “model jurist” and pledged a swift confirmation process for his successor.

“America owes Justice Breyer an enormous debt of gratitude,” he said in a statement. “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.”

Senate Judiciary Committee Chairman Dick Durbin said in a statement he intends for his panel to take up Mr. Biden’s nomination “expeditiously” and said Mr. Biden “has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice.”

Appointed to the Supreme Court in 1994 by President Bill Clinton, Breyer’s tenure has been marked by his pragmatism and creative hypotheticals during oral arguments, which over the years have featured deranged “tomato children,” a “rabbit-duck” and garage-door sensors eaten by raccoons. He will step down from the court after a blockbuster term that included cases on the Second Amendment, abortion and religious liberty. The justices on Monday said they would hear a pair of cases involving the use of race in college admissions, adding affirmative action to the docket likely in its next term.

A vocal critic of the death penalty, he has repeatedly called for the high court to reconsider its constitutionality and, in a 2015 dissent in a case involving Oklahoma’s three-drug protocol for lethal injection, wrote he believes “it highly likely that the death penalty violates the Eighth Amendment.”

Breyer authored the majority opinions last term in two high-profile disputes before the Supreme Court: The first saving the Affordable Care Act from a Republican-led effort to dismantle it and the second setting limits on schools’ ability to punish students for off-campus speech. 

As the Supreme Court’s ideological makeup has shifted rightward in recent years, Breyer and Justice Elena Kagan have demonstrated a willingness to compromise with their conservative colleagues and have been more moderate in their ideologies.

Before joining the Supreme Court, Breyer served on the U.S. Court of Appeals for the 1st Circuit and was chief counsel for the Senate Judiciary Committee under Chairman Ted Kennedy, a post that gave him a front-row seat to the political dynamics of the judicial nominating process. 

Breyer has not shied away from weighing in on controversial issues involving the Supreme Court, namely efforts by some progressives to expand its membership from nine to 13. His comments were frequently cited by opponents of so-called “court-packing,” as the issue gained traction among Democrats as a way to dilute the power of the conservative justices. During an April 2021 lecture to Harvard Law School, he warned adding seats to the high court could erode the public’s trust in the institution and urged those pushing such a change to “think long and hard before they embody those changes in law.”

The 83-year-old has also come out in favor of term limits for justices, though he has stressed their tenures should be long.

Breyer’s retirement comes as the Supreme Court transformed to one now dominated by conservative justices, with former President Donald Trump naming Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the high court during his only term. Barrett’s confirmation following the death of the liberal stalwart Justice Ruth Bader Ginsburg expanded the court’s conservative majority to 6-3. 

Activists who pressured Breyer to retire often cited Ginsburg’s decision not to step down during former President Barack Obama’s first term, when Democrats controlled the Senate, as a cautionary tale, as the liberal justice was replaced with a conservative.

Brian Fallon, executive director of Demand Justice, said in a statement it’s a “relief” that Mr. Biden will have the chance to choose a successor for Breyer while Democrats control the Senate.

“Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” he said. “Confirming Justice Breyer’s successor will not break the Republican chokehold on the Supreme Court and it is not a substitute for structural reform, but it will break an important barrier and bring needed diversity to the court.”

The former president’s impact on the Supreme Court reignited a focus for Democrats on its future, as they warned the impact of the conservative bench would be starkly felt in disputes involving hot-button issues like abortion, the Second Amendment and the environment.

It’s unclear how quickly Mr. Biden will move to nominate a replacement for Breyer. Confirmation hearings before the Senate Judiciary Committee will be led by Durbin, a Democrat from Illinois. Unlike his predecessor, Mr. Biden declined to release a list of possible Supreme Court contenders, bucking calls from Democrats to do so during the presidential campaign.

Nancy Cordes, Major Garrett, Ed O’Keefe and Bo Erickson contributed reporting.