Supreme Court Shake-Up: Justice Stephen Breyer Retires; Joe Biden Gets Opportunity To Name 1st Black Woman To Top Court

Dominic Patten and Ted Johnson
·5 min read
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After almost three decades on the Supreme Court, Justice Stephen Breyer is stepping down.

An official announcement was expected soon, but Breyer’s plans to retire were confirmed by Senate Majority Leader Chuck Schumer.

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The 83-year old liberal associate justice is the oldest member of the high court, which has a 6-3 conservative majority, and there has been pressure for him to resign while a Democrat is in the White House the party still holds a majority in the Senate.

His departure will give President Joe Biden the opportunity to nominate his first Supreme Court justice, even if it won’t change the balance of the court.

Schumer said that 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.” Breyer reportedly would step down at the end of the term.

Still, any nomination is always a big opportunity for any president, and is important for Democrats’ seeking to counter the conservative majority with younger justices. Democrats could lose their power in the midterms given the 50-50 Senate, and Breyer’s exit may also be the only opening Biden has to get a strong liberal nominee confirmed.

Biden, appearing at an event on the economy with corporate CEOs, declined to comment. “There has been no announcement from Justice Breyer. Let him make whatever statement he wants to make and I’m happy to talk about it later,” Biden told reporters.

As in the past, networks covered the news by breaking into regular programming. NBC News justice correspondent was the first to report on Breyer’s plans, as the network went into a special report at 11:54 AM ET. MSNBC went to a special report at 11:58 AM ET, before any of the other news channels.

Breyer’s plans to retire come as the Supreme Court is expected to hand down seismic rulings on abortion and other cases, something that will likely play in a nominee’s confirmation hearings, along with an array of other cultural issues. Adding to that is the fact that then candidate Biden pledged during the bitter 2020 campaign that if elected he would name the first Black woman to the Supreme Court.

Being that the appellate court is usually the source for Supreme Court nominees, the spotlight has therefore become even brighter on Judge Ketanji Brown Jackson since her elevation to the U.S. Court of Appeals for the District of Columbia Circuit last year.

Other possible Biden picks for SCOTUS include California Supreme Court Justice Leondra R. Kruger and U.S. District Judge Leslie Abrams Gardner. As some Beltway insiders may now, Judge Abrams Gardner is the sister of former and perhaps future Georgia gubernatorial candidate Stacey Abrams, whose voter access advocacy was vital to Biden securing the Peach State last year and the election of two Democrats to the Senate.

At Wednesday’s White House press briefing, reporters queried Press Secretary Jen Psaki about another name: Vice President Kamala Harris. Psaki declined to comment, but said, “The president has every intention, as he has said before, of running for reelection, and running for reelection with Vice President Harris on the ticket as his partner.” Psaki, however, did reiterate Biden’s campaign pledge to nominate a Black woman for the post.

With rumors of Breyer’s retirement in the mix over the last year, a number of potential nominees have already been essentially vetted. That could allow the administration to move relatively quickly on a nomination. Biden’s predecessor Donald Trump moved quickly to name his three nominees to the court, which ultimately solidified the right’s majority. Even with bruising and contentious confirmation battles, then Senate Majority Leader Mitch McConnell briskly pushed through the nominations — about a month in the case of Amy Coney Barrett, who was confirmed to succeed Justice Ruth Bader Ginsburg a week before the 2020 election.

Breyer was nominated to the Supreme Court by Bill Clinton in 1994 to take the seat vacated by Justice Harry Blackmun. More low profile than some of his contemporaries, he has been a pivotal vote and voice in heated and divisive issues like abortion rights. As well, he had a noted tendency over the decades to rule in favor of the legislative and executive branches of the federal government. When it comes to industry issues, Breyer wrote the majority opinion in a 2014 opinion that gave broadcasters a big win in their efforts to shut down the tech upstart Aereo, which ran streams of their programming without authorization.

The much watched, and Covid-19 determined remote last term of the High Court saw the Harvard Law School grad and Watergate assistant special prosecutor penning the 7-2 majority opinion that nixed the latest GOP challenge to the Affordable Care Act, also known as Obamacare. In an opinion last June, in California v. Texas, deciding that the Lone Star state and others lacked standing to take on the health insurance expansion, Breyer was curt and cutting. “It is consequently not surprising that the plaintiffs cannot point to cases that support them,” he wrote in the 57-page opinion. “To the contrary, our cases have consistently spoken of the need to assert an injury that is the result of a statute’s actual or threatened enforcement, whether today or in the future.”

Breyer, though, has been in the minority in more recent high profile cases, including the court’s decision to set aside the Biden administration’s vaccine mandate. Breyer wrote the 2016 majority opinion that struck down a Texas abortion, but he was in the minority when the court recently let a different law stand in that state as legal proceedings play out.

That reflected the reality that no matter who Biden names to the court, the ideological makeup will remain the same, perhaps for quite a long time.

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