Supreme Court justice Stephen Breyer will retire, according to media reports on Wednesday, which, if confirmed, will provide Joe Biden with the opportunity to pick a younger judge.
Such a choice would bolster the liberal wing of the bench as it weathers a dominant conservative majority achieved under the Trump administration and the threat of presidential picks being blocked if the Republicans win back control of the US Senate in this year’s midterm elections.
Breyer, 83, had been under pressure from progressives eager to give the new president the chance to fill a seat on the court while the Democrats hold power in the White House and Congress, including a wafer-thin margin in the Senate, which would have to confirm Biden’s nominee.
The California-born supreme court justice was nominated by Bill Clinton in 1994 and confirmed with strong bipartisan support in the Senate at the time.
Breyer is perhaps the least well-known of the current justices outside legal circles, chiefly because he is regarded as a pragmatist and has spent more than two decades at the moderate end of the liberal wing, actively eschewing any whiff of celebrity or notion of the court being an extension of party politics.
He is the most senior member of the court’s liberal minority following Ruth Bader Ginsburg’s death last September at the age of 87.
Despite what had initially appeared to be resistance. to pressure to withdraw quickly in the Biden administration, Breyer is calling it a day.
During the 2020 presidential election, Biden signaled that he would like to appoint the first Black woman to the nine-member bench if he won the presidency and a seat became available on the supreme court.
Among names being circulated are California supreme court justice Leondra Kruger, US district court judge Ketanji Brown Jackson and US district court judge J Michelle Childs. She is a favorite of Congressman James Clyburn of South Carolina, who made a crucial endorsement of Biden for the Democratic nomination just before the state’s presidential primary last year.
Whether Breyer bowed to pressure or not there is no doubt that he had warnings ringing in his ears from liberals, building last summer, that he shouldn’t hang on to his seat and risk having his replacement stymied by a Republican-controlled Senate or selected by a future Republican president.
The latter happened with Ginsburg, who resisted years of such hintsincluding from Barack Obama when he was president, and outright lobbying.
She died in the last weeks of the 2020 election campaign, affording Republican president Donald Trump his third supreme court pick. The Senate, led at the time by the GOP’s Mitch McConnell, rushed through Ginsburg’s replacement, the ultra-conservative Amy Coney Barrett, boosting conservatives to a 6-3 majority on the bench.
McConnell said in last June that it was “highly unlikely” he would allow Biden to fill a vacancy if Republicans had regained Senate control.
But the court’s shift to the right began five years ago, when Antonin Scalia died suddenly and Senate Republicans refused to process Barack Obama’s nomination of Merrick Garland.
Had Garland, now Biden’s attorney general, been confirmed, it would have given the court a majority appointed by Democratic presidents for the first time in 50 years.
Instead, the seat remained empty, Trump shocked the world by winning the presidency and his first of three picks, Neil Gorsuch, joined the court in April 2017.
A year later the court’s “swing vote”, Justice Anthony Kennedy, retired and Trump put Justice Brett Kavanaugh in his seat.
Kennedy’s retirement essentially put Chief Justice John Roberts at the ideological, though right-leaning, center of the court, and he has also resisted public perceptions of the court as merely a political institution.
But Ginsburg’s death ended a brief period in which Roberts controlled how far the court would go either right or left as, effectively, the swing vote.
Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, had earlier this year written an opinion piece for the Washington Post calling on Breyer to retire sooner rather than later.
In the American Bar Association Journal, however, Chemerinsky also paid tax to Breyer as a judge with “a pragmatic approach to judging that looks more to real-world effects than abstract ideology”.
And he pointed to important positions taken by Breyer while on the bench.
These included a majority decision in June 2016 striking down two provisions of a Texas abortion law that would severely restrict women’s access to abortion services, in the case titled Whole Woman’s Health v Hellerstedt.
And a dissent in 2015’s Glossip v Gross case, where Breyer said it is “highly likely that the death penalty violates the eighth amendment” to the US constitution which prohibits the federal government from imposing cruel and unusual punishment.
Breyer was born in San Francisco and raised in a Jewish family. He studied at Stanford University, Magdalen College, Oxford and Harvard Law and was appointed to be an appeals court judge by outgoing Democratic president Jimmy Carter in 1980.
George is Digismak’s reported cum editor with 13 years of experience in Journalism