WASHINGTON — Supreme Court Justice Stephen Breyer plans to step down by the end of his term after nearly three decades on the High Court, a source familiar with his plans told USA TODAY on Wednesday, giving President Joe Biden his first opportunity to appoint a jurist whose influence has been felt for decades.
Breyer’s announcement, which multiple outlets citing unnamed sources said would occur when the tribunal’s term ends this summer, will kick off a frantic process of nominating and confirming a successor, usually a months-long ordeal that, in this case should terminate. with a revolutionary candidate: Biden had promised during his presidential campaign to appoint a black woman to the Supreme Court for the first time in American history.
“For virtually his entire adult life, including a quarter century on the Supreme Court of the United States, Stephen Breyer has served his country with the highest possible distinction,” said Senate Majority Leader Chuck Schumer. , DN.Y., in a statement. “He is, and always has been, a model jurist.”
Schumer said Breyer’s replacement would be confirmed “with deliberate speed”.
Breyer did not respond to a request for comment through a court spokeswoman. White House spokeswoman Jen Psaki said in a tweet that the administration had “no further details or information to share.” The news was first reported by NBC.
At 83, Breyer is the second-longest-serving associate justice and his retirement was encouraged by liberals who wanted to ensure Biden’s nominee would benefit from a Democratic-controlled Senate. Breyer has generally sided with liberal justices, so whoever replaces him is unlikely to change the court’s current conservative leanings.
But Breyer’s departure will rob the Supreme Court of its main proponent of a living Constitution, the idea that the interpretation of the founding document can change over time. Breyer was also a strong proponent of the idea that judges decide cases based on their judicial philosophy, not their politics.
Appointed by President Bill Clinton in 1994, Breyer is often described as a pragmatist, optimist, and institutionalist who believed in deference to the legislature but was skeptical of executive overreach. A prolific writer, Breyer authored important majority opinions overturning anti-abortion laws in Nebraska and Louisiana and is also known for his scathing dissents, including in several death penalty cases.
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Breyer wrote some of the court’s most notable opinions during the tenure that ended last summer. He wrote the majority opinion thwarting the latest challenge to the Affordable Care Act, concluding that conservative states that pursued his mandate that most Americans get insurance lacked standing to sue. He also wrote the court’s opinion in a major First Amendment case, siding with a former student who was punished for a vulgar social media post aimed at her school.
Breyer wrote that it “might be tempting” to dismiss the student’s rude message as unworthy of First Amendment protection.
“But sometimes”, he added, “you have to protect the superfluous to preserve the necessary”.
Breyer, a California native and Harvard law graduate, is the court’s most vocal opponent of the concept of “originalism” espoused by the late Justice Antonin Scalia – the idea that jurists interpret the Constitution in terms of its meaning. at the time it was written. Breyer instead embraced the idea of a “living” document that allows courts to give a more dynamic reading when what the drafters had in mind is unclear.
But Breyer is also seen as a less doctrinaire liberal than associate justices Elena Kagan or Sonia Sotomayor — more willing to side with the court’s conservatives in some law enforcement cases, for example. In this sense, he was sometimes seen as an intermediary between liberal and conservative factions at court.
Biden is now expected to begin the process of selecting a new Supreme Court justice, as Democrats are still reeling from the impact former President Donald Trump has had on the federal court system – appointing three justices to the High Court and over 200 judges in lower courts. The Supreme Court’s current 6-3 slant makes the Court the most conservative since the 1930s, when it tussled with President Franklin D. Roosevelt over his New Deal policies.
Since Biden’s nominee won’t affect that balance, the president could face an easier confirmation process. Senate Republicans scrapped the filibuster of Supreme Court nominees in 2017, meaning Biden will now be able to have his nominee confirmed by a simple majority.
Some progressive groups pushed Breyer to retire. These groups were aware of the late Justice Ruth Bader Ginsburg’s decision not to step down before Republicans took control of the Senate in 2014. But others noted that Breyer, who once worked for the Senate Judiciary Committee, was well aware of the political dynamics.
Unlike Trump, who went public with his shortlist before picking a nominee, Biden kept his top candidates for the lifetime nomination to himself. Still, the president floated the idea of appointing a black woman to the court ahead of the Feb. 29 primary in South Carolina last year. He won the state and turned his struggling campaign around.
Assuming Biden selects a nominee from the traditional pool — i.e. the current judges — and chooses someone who can serve for decades before retiring, the choices are somewhat limited by a lack of racial diversity in courtrooms across the country. DC Circuit Judge Ketanji Brown Jackson, whom President Barack Obama considered for court in 2016, is widely seen as a top contender this time around.
Jackson, who got three Republican votes for confirmation on June 14, served as Breyer’s secretary in 1999.
Leondra Kruger, a California Supreme Court justice who worked in the Justice Department for Obama and President George W. Bush, is also often mentioned as a possible candidate. Kruger, who worked in the Solicitor General’s office, argued a dozen cases before the Supreme Court.
Not only would Biden’s promise bring the first black woman to the Supreme Court, but it would also bring together four women there for the first time – with associate justices Elena Kagan, Amy Coney Barrett and Sonia Sotomayor, an Obama appointee who is the court first. Latin. It would also be the first time that two African Americans have served simultaneously, with Biden’s nominee joining Associate Justice Clarence Thomas.
Partly because Trump and Senate Republicans were in a rush to replace Ginsburg ahead of the November election, Barrett’s confirmation took 27 days. The median number of days between a Supreme Court nomination and final Senate action is 68 days, according to the nonpartisan Congressional Research Service.
Brianne Gorod, chief counsel for the Constitutional Accountability Center who worked for Breyer during the 2008 term, described him as having “a deep and unshakeable belief that our Constitution establishes a system of government that should work for the people.” .
“So he cares deeply about the realities against which the court rules cases,” she said. These concerns, she added, “are evident in many of the opinions he has written over the years.”