Breyer to step down from Supreme Court

U.S. Supreme Court Justice Stephen Breyer plans to retire at the end of this court term, ending a nearly three-decade stint as justice and giving President Joe Biden the opportunity to choose a replacement. Widely circulated news reports announced Breyer’s imminent retirement on Wednesday, and he is expected to make it official on Thursday at the White House.

Breyer, known as a pragmatist, sought common ground with liberal and conservative colleagues. His retirement won’t reshape the court’s current conservative majority but is still likely to trigger a heated confirmation fight.

He has ruled based on his interpretation of the real-life consequences of the Constitution, rather than focusing on the original meaning of it like his onetime colleague Justice Antonin Scalia. He wrote about courts needing to embrace the “democratic nature” of the Constitution.

But Breyer also did not want the American public thinking of the justices as “junior league politicians” and spoke publicly in 2021 against Democratic proposals to pack the court with extra justices to diminish the power of conservatives.

He has supported abortion, dissenting in a 2007 ruling on Gonzales v. Carhart that upheld a federal ban on partial-birth abortion. But he also at times boosted religious freedom. Breyer supported providing public benefits to churches in Trinity Lutheran v. Comer and sided with the conservative justices in the Little Sisters of the Poor v. Pennsylvania, ruling in favor of the nuns who objected to the Obama administration’s contraceptive mandate.

“He was never out there with [Ruth Bader] Ginsburg or [Sonia] Sotomayor. He’s been a little more balanced,” said Brad Jacob, a lecturer at Regent University School of Law. “Breyer has always been a judge who gets down in the nitty-gritty facts of each case.”

Liberal activists and Democrats have urged Breyer to retire since Biden’s election. At age 83, he is the court’s oldest member. Liberals are eager to avoid a repeat of the scenario that arose after Justice Ruth Bader Ginsburg’s death during former President Donald Trump’s administration. Trump replaced Ginsburg by appointing Justice Amy Coney Barrett, creating the current conservative majority on the court. Breyer previously bristled at suggestions he should time his retirement to secure a liberal replacement, but the current balance of power in the Senate (Democrats have 50 of 100 seats and can break a tie with Vice President Kamala Harris’ vote) gives Biden freedom to choose a young, liberal justice likely to serve for decades. Biden has promised to nominate a black woman to the court, which narrows the pool of potential nominees.

Three front-runners: Judge Ketanji Brown Jackson, on former President Barack Obama’s 2016 shortlist for the Supreme Court, U.S. District Judge J. Michelle Childs, and California Supreme Court Justice Leondra Kruger, a solicitor general under Democratic and Republican administrations.

Tom Berg, a law professor at the University of St. Thomas, noted that Kruger’s past arguments before the Supreme Court sought to undermine the ministerial exception that allows religious groups to discriminate based on religious beliefs when hiring. He cautioned that past arguments don’t necessarily predict a future justice’s rulings. John Malcolm, a vice president of the Heritage Foundation, said Jackson’s recent confirmation to her current position in the U.S. Court of Appeals District of Columbia Circuit could give her a leg up in the Supreme Court nomination process. Congress hasn’t changed since that confirmation, and senators would need a strong reason to reverse a previous supporting vote.

Most Republican members of Congress will likely oppose any Biden nominee. Recent Supreme Court confirmation battles for Justices Brett Kavanaugh and Barrett have provoked fiery partisan wrangling. But if Democrats unanimously support Biden’s nomination, they don’t need any Republican votes. “It’s gonna be a very interesting fight, but all they need is 50,” Jacob said. “And then get the vice president to break the tie.”

Because Biden needs support from moderates like Sen. Joe Manchin, D-W.Va., he may choose a more moderate judge. But Manchin has consistently supported Biden’s previous court nominations, and any judge chosen could tilt the court left by abandoning Breyer’s impulse to find common ground. “That’s the question,” Berg said. “Whether the new justice will be more like Breyer, or more like Sotomayor.”