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Justice Stephen Breyer to Retire from US Supreme Court

Stephen Breyer
US Supreme Court Justice Stephen Breyer announced his retirement on Wednesday, allowing President Biden to name a replacement during his administration. Credit: World Affairs Council/Flickr/ CC BY 2.0

US Supreme Court justice Stephen Breyer announced his retirement on Wednesday, paving the way for President Biden to nominate his own choice for the vacancy. Biden already had promised he would nominate a black woman for the post.

Breyer, who was nominated by former President Bill Clinton in 1994, has been part of the US’ highest court’s liberal group, which now comprises three members.

The New York Times reports, citing a source who is involved in planning the event, that Biden will likely formally announce Breyer’s retirement at the White House tomorrow.

Stephen Breyer was oldest Justice on Court after death of Justice Ruth Bader Ginsburg

At 83, Breyer is now the oldest member of the court, after the death of Justice Ruth Bader Ginsburg in 2020.

After former President Trump’s appointment of conservative Justice Amy Coney Barrett, many had openly hinted that Breyer should resign to allow Biden the opportunity to name a liberal Justice during his administration — and while Democrats are in the majority in the Senate.

However, conservatives are now in the majority in the court, so naming another liberal will likely not affect its rulings on hot-button issues like abortion, the Second Amendment, religion and affirmative action.

The mid-term elections of 2022 are looming, and Democrats fear the abysmal approval ratings for Biden, coupled with severe inflation and ongoing coronavirus issues, mean that they will have to act now, in case the country takes a hard swing to the right again before the next presidential election.

Even if the Democrats lose just one seat in the 2022 elections, the balance of power in the Senate would flip as well, making it much more difficult, or perhaps impossible, for Biden to get his nominee approved.

During his tenure, Breyer was known for his moderate liberal views as he repeatedly deferred to experts on a range of issues and balanced competing interests. His stated judicial goals were to reinforce the democratic process and employ workable legal principles for the country.

Experts note that although he is more likely than not to have voted against criminal defendants, he has shown himself to be increasingly hostile to the death penalty.

Breyer was especially prominent in the last term of the court, writing majority opinions rejecting a legal challenge to the Affordable Care Act and protecting the free speech of a high school student, The Times notes.

Interviewed in August of 2021, Breyer admitted that he was struggling with the issue of if and when to step down.

“There are many things that go into a retirement decision,” he acknowledged. Supreme COurt nominations are always a political battleground these days, and Breyer stated that he had spoken about the issue with the late Justice Antonin Scalia.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Breyer recalled, adding  “That will inevitably be in the psychology” of his decision.

“I don’t think I’m going to stay there till I die — hope not,” he stated at the time.

Still, Justice Breyer added that once on the highest court of the land, bristled at the accusation that judges act politically. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he told the audience last April during a speech at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

Biden made a point of announcing during his Presidential campaign that he would appoint a black woman to an empty Supreme Court seat, promising to do so as part of a debate in February 2020.

“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” Biden said at the time.

Two possible names are cropping up as potential nominees, including Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit, who graduated from Harvard Law School and served as a clerk to Justice Breyer, and Justice Leondra R. Kruger of the California Supreme Court, a Yale graduate who served as a law clerk to Justice John Paul Stevens, according to The Times.

Justice Breyer himself had been asked about the propriety of stepping down from what is normally a lifetime appointment as a way to allow the sitting President to nominate someone from the same party. Chief Justice William H. Rehnquist, who died in 2005, had answered that in the negative.

“No, it’s not inappropriate,” the former chief justice had responded, adding “Deciding when to step down from the court is not a judicial act.”

To which Justice Breyer gave his full judicial assent. “That’s true,” he stated.

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