Liberal U.S. Supreme Court Justice Breyer to retire, letting Biden pick
Send a link to a friend
[January 27, 2022]
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) -Liberal U.S. Supreme
Court Justice Stephen Breyer plans to retire, lawmakers said on
Wednesday, giving President Joe Biden the opportunity to fulfill a
campaign promise to nominate the first Black woman to the nation's top
The retirement of Breyer, who is 83 and has served on the court since
1994, gives Biden a first chance to shape the court , whose 6-3
conservative majority has shown an increasing assertiveness on issues
including abortion and gun rights. Biden's Republican predecessor Donald
Trump was able to choose three justices during his four years in office.
Biden's fellow Democrats hold a razor-thin majority in the Senate, which
under the U.S. Constitution confirms Supreme Court nominees. Senate
Majority Leader Chuck Schumer said Biden's nominee to replace Breyer
will receive a "prompt hearing" and will be considered and confirmed
with "all deliberate speed."
The Democrats have reason for speed. Republicans are seeking to regain
control of the Senate in the Nov. 8 congressional elections. The
chamber's top Republican, Mitch McConnell, has made clear he would block
any Biden nominations to the court if his party regains the majority.
A Biden appointee to replace Breyer, who is set to step down after the
court's current term that runs through June, would not change its
ideological balance, but would enable him to refresh its liberal wing
with a much younger jurist who could serve for decades in the lifetime
White House Press Secretary Jen Psaki said Biden will honor his
presidential election campaign pledge to nominate a Black woman to fill
any Supreme Court vacancy. Neither the White House nor the Supreme Court
confirmed Breyer's retirement plans.
Breyer and Biden are scheduled to make a public appearance on Thursday
where the justice is set to formally announce his retirement, a CNN
reporter wrote in a tweet, citing a source familiar with the matter.
Democrats aim to confirm Biden's pick for the vacancy in a time frame
similar to the one-month process that McConnell and the Republicans used
in 2020 to confirm Trump's third appointee, Amy Coney Barrett, according
to a source familiar with planning.
White House counsel Dana Remus is likely to help spearhead the process
The Senate's filibuster 1 rule that requires 60 of the 100 members to
agree to advance most legislation does not apply to judicial
nominations, meaning Democrats could confirm a Biden pick with just
their 50 members and Vice President Kamala Harris' tie-breaking vote.
Two centrist Democrats who have blocked some Biden legislative
priorities, Senators Joe Manchin and Kyrsten Sinema, have so far
supported most of his judicial nominees.
[to top of second column]
Supreme Court Justice Stephen Breyer testifies before a House
Judiciary Commercial and Administrative Law Subcommittee hearing on
"The Administrative Conference of the United States" on Capitol Hill
in Washington May 20, 2010. REUTERS/Kevin Lamarque/File Photo
Breyer, the Supreme Court's oldest
member, was appointed to his lifetime post by Democratic President
Bill Clinton. He authored important rulings upholding abortion
rights and healthcare access, helped advance LGBT rights and
questioned the constitutionality of the death penalty. He often
found himself in dissent on a court that has moved ever rightward.
Potential Biden nominees include Ketanji Brown Jackson, a former
Breyer law clerk who was confirmed by the Senate last June to serve
on an influential U.S. appellate court, and Leondra Kruger, who
serves on the California Supreme Court.
Only conservative Justice Clarence Thomas has served longer than
Breyer among the current justices, joining in 1991. Thomas is one of
two Black men to have served on the high court, alongside Thurgood
Marshall who served from 1967 to 1991.
Trump's three appointees all are young enough to serve for decades.
The Senate, then under Republican control, confirmed Barrett in 2020
after the death of liberal Justice Ruth Bader Ginsburg.
After Biden defeated Trump in the 2020 election, some liberal
activists urged Breyer to step aside while Democrats control the
Senate, concerned that if he did not do so Republicans could block
confirmation of his successor or a future Republican president could
name his replacement and tilt the court even further to the right.
The court is due to rule by the end of June in cases giving its
conservative majority a chance to curtail abortion rights and widen
gun rights. The justices this week took up a case to be decided in
their next term that could doom university policies considering race
as a factor in student admissions and cripple affirmative action
policies despised by the American right.
Breyer last year authored a ruling rejecting a Republican bid to
invalidate Obamacare, preserving the landmark healthcare law
formally called the Affordable Care Act for the third time since its
He authored two important abortion rulings in 2016 and 2020 that
struck down restrictions on clinics in Texas and Louisiana. He also
was in the majority in the landmark ruling in 2015 that legalized
gay marriage. Breyer has become a persistent critic of the death
penalty and wrote that it was "highly likely" that capital
punishment violates the Constitution's Eighth Amendment prohibition
on cruel and unusual punishment.
(Reporting by Lawrence Hurley in Washington, Andrew Chung in New
York and Kanishka Singh in Bengaluru; Additional reporting by
Richard Cowan and Jeff Mason; Editing by Scott Malone, Will Dunham
and Rosalba O'Brien)
[© 2022 Thomson Reuters. All rights
reserved.] This material may not be published,
broadcast, rewritten or redistributed.
Thompson Reuters is solely responsible for this content.