Supreme Court Justice Stephen Breyer to retire

Supreme Court Justice Stephen Breyer is expected to announce his retirement this week, after serving nearly 30 years on the bench.

Breyer’s legacy: Appointed in 1994 by President Bill Clinton, Breyer has sought to focus the law on how it could work for the average citizen.

He was no firebrand and was quick to say that the Supreme Court couldn’t solve all of society’s problems. He often stressed that the court shouldn’t be seen as part of the political branches but recognized that certain opinions could be unpopular.

“If the public sees judges as ‘politicians in robes,’” he warned, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”

The news of Breyer’s retirement comes as the court’s conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.

Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden’s vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect. The law is the strictest in the nation and bars abortion before most women even know they are pregnant.

What’s next?: On the campaign trail, President Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden’s nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.

Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.

Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.

After Biden’s selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.

Breyer is expected to stay on until the end of the term and until a replacement is confirmed.

Senate GOP Leader Mitch McConnell declined to weigh in on Supreme Court Justice Stephen Breyer’s plans to retire until the justice makes an official announcement.

Asked about Breyer’s plans to retire and what nominee he expects Biden to pick, McConnell said, “Well, I’m afraid to put the cart before the horse.”

“Justice Breyer has not made an official announcement and he’s entitled to do that whenever he chooses to and when he does that I’ll have a response to his long and distinguished career,” McConnell said.

He was also asked whether Republicans plan to try and block Biden’s Supreme Court nominee.

“We don’t even know who the nominee is yet. So that’s something the President has the opportunity to make should there be a vacancy and Justice Breyer will determine when and if there’s a vacancy,” McConnell said.

White House press secretary Jen Psaki told reporters that President Biden “certainly stands by” his campaign trail promise to nominate a Black woman on the highest court in the land.

During a primary debate in February 2020, Biden pledged to appoint a Black woman to the Supreme Court if given the opportunity, calling it “long overdue.”

Psaki told reporters Wednesday the White House would “not have additional details” on news of Supreme Court Justice Stephen Breyer’s retirement until Breyer made the announcement himself.

In a follow up, Psaki declined to offer any details on what planning the White House had prepared in the event of a SCOTUS vacancy.

Earlier Wednesday, the President declined to weigh in on the news of Breyer’s retirement from the court.

“Every justice has the right to decide what he or she is going to do, and announce that on their own,” Biden said. “There’s been no announcement from Justice Breyer. Let him make whatever statement he is going to make, and I’ll be happy to talk about it later.”

Appointed in 1994 by President Bill Clinton, Supreme Court Justice Stephen Breyer has sought to focus the law on how it could work for the average citizen. He was no firebrand and was quick to say that the Supreme Court couldn’t solve all of society’s problems. He often stressed that the court shouldn’t be seen as part of the political branches but recognized that certain opinions could be unpopular.

“It is wrong to think of the court as another political institution,” Breyer told an audience at Harvard Law School in 2021. “It is doubly wrong to think of its members as junior league politicians.”

“If the public sees judges as ‘politicians in robes,’” he warned, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”

The news comes as the court’s conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.

Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden’s vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect.

The law is the strictest in the nation and bars abortion before most women even know they are pregnant.

Here’s a look at the current makeup of the court:

Supreme Court Justice Stephen Breyer choosing to announce his retirement in January, six months before he’ll actually be leaving, “is giving the President lots of time to name a successor and to avoid getting caught up in the partisan hostilities,” CNN Supreme Court analyst Joan Biskupic said.

Biskupic noted that Breyer had “struggled” with the decision to retire, but that he knew “it was time.”

“He resisted the pressure last term, as you know, to leave because everybody was thinking about what happened with Ruth Bader Ginsburg who resisted pressure when a Democrat was in the White House and President Obama had a Democratic Senate then what happened is that she died and then her successor, Amy Coney Barrett, has transformed this court,” Biskupic explained on CNN.

Biskupic continued, “So I know that he has been weighing this for a long time. It was just a matter of when he was going to just accept the fact that he’s had a long, important tenure. Twenty eight years on the Supreme Court. He’s 83. He doesn’t want to leave anything more to chance. Especially since the senate hangs by one vote for a Democratic majority.”

Joe Biden, then-chairman of the Senate Judiciary Committee, right, talks to President Clinton’s Supreme Court nominee Stephen Breyer on Capitol Hill in May 1994.

Through his long career as a member of US Congress, President Biden presided over many Supreme Court confirmations when he served as chairman of the Judiciary Committee.

Here’s a list:

September 1987 — Robert Bork (failed)

Then-Sen. Joseph Biden, chairman of the Senate Judiciary Committee, left, greets Judge Robert Bork prior to a hearing of the committee on Capitol Hill in September 1987. The committee was holding hearings on the nomination of Bork to become a Supreme Court Justice.

December 1987 — Anthony Kennedy

Supreme Court nominee Anthony M. Kennedy, right, shakes hands with then-Senate Judiciary Committee Chairman Joseph Biden of Delaware before the start to his confirmation hearing at Capitol Hill in December 1987.

September 1990 — David Souter

Then-Sen. Joseph Biden (D-Del.), chairman of the Senate Judiciary Committee, speaks with Supreme Court justice nominee David Souter before the start of confirmation hearings in September 1990. 

September/October 1991 — Clarence Thomas

Supreme Court Justice nominee Clarence Thomas is escorted by Sen. Strom Thurmond, second from right, and Sen. John Danforth, right, while walking past then-Senate Judiciary Committee Chairman, Sen. Joseph Biden (D-Del.), left, on Capitol Hill in September 1991, prior to the start of Thomas's nomination hearing.

July 1993 — Ruth Bader Ginsberg

Then-Sen. Joseph Biden, D-Del., chairman of the Senate Judiciary Committee, talks to Supreme Court nominee Judge Ruth Bader Ginsburg prior to the start of her confirmation hearing before the committee on Capitol Hill in July 1993.

July 1994 — Stephen Breyer

President Biden vowed during the campaign trail that if he were to get a vacancy he would put a Black woman on the high court.

Well before Stephen Breyer’s retirement plans became public, a short list of potential nominees had been circulating Washington and officials in the White House Counsel’s office built files on various candidates in anticipation of a potential vacancy. Now, those efforts will ramp up significantly and the President will likely hold one-on-one meetings before announcing his pick.

While the President nor the White House have announced a nominee, here are potential picks who have been on observers’ short list:

Other names that have been floated:

Read more about the possible nominees here.

Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden’s nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.

Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.

A look back at the Barrett timeframe: Justice Ruth Bader Ginsburg died on Sept. 18, 2020, and Barrett was nominated by former President Trump on Sept. 26, 2020. She was confirmed Oct. 26, 2020 — just days before the presidential election, prompting Democratic anger. In 2016, Republicans blocked the nomination of now-US Attorney General Merrick Garland, saying it was too close to the election.

In what will be one of the most monumental endeavors of Joe Biden’s presidency, the retirement of Stephen Breyer sets the stage for an immensely important decision by the President.

Breyer’s seat may be the only one that Biden fills on the Supreme Court — and it may not be one he fills at all if Republicans retake the Senate before the President’s choice for a replacement is confirmed.

On the campaign trail, Biden vowed to put a Black woman on the high court, which would be a historic first. A short list of potential nominees had been circulating Washington well before Breyer’s retirement plans became public, and officials in the White House counsel’s office built files on various candidates in anticipation of a potential vacancy.

Now, those efforts will ramp up significantly and the President will likely hold one on one meetings before announcing his pick.

The White House is stacked with officials deeply familiar with the confirmation process, starting with Biden himself — who chaired the Senate Judiciary Committee — as well as White House chief of staff Ron Klain, who has experience both at the White House counsel’s office and working for the Senate Judiciary Committee.

Why this matters: With Democrats holding the narrowest of majorities in the upper chamber, Biden will have to choose someone who can safely get 50 votes in the Senate (Vice President Kamala Harris could provide the tie-breaking vote if the Senate is split on the nomination). In addition to the vote count, Biden also has to keep an eye on the calendar. Senate Republicans are likely to retake the chamber in this year’s midterms and have already signaled they would block a Biden nominee to the Supreme Court. It typically takes two to three months for a President to see his nominee confirmed by the Senate once he or she is named. The most recent justice, however, was confirmed in just a month and a half, as Senate Republicans rushed to get Justice Amy Coney Barrett approved before the 2020 election.

Given the disappointments that have been recently dealt to the progressives under the Biden administration — between the congressional demise of the President’s Build Back Better proposal and his failure to find a way forward on voting rights legislation — Biden’s choice for the Supreme Court gives him the opportunity to reinvigorate the Democratic base. If she is confirmed, Biden will secure a much-needed victory for his administration.

Read about Biden’s possible nominees here.

#Analysis##

President Biden declined to weigh in on the news Supreme Court Justice Stephen Breyer plans to retire, instead deferring to Breyer, who plans to announce his retirement at the White House as early as tomorrow, sources say.

Biden then returned to the program at today’s CEO Meeting at the White House, turning to Tom Linebarger, Chairman and Chief Executive Officer of Cummins, joking, “Do you want to go to the Supreme Court, Tom?”

“I’m going to defer on that one,” Linebarger responded, before starting his remarks.

Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.

After Biden’s selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.

Lawmakers are starting to react to the news that Supreme Court Justice Stephen Breyer is retiring. Several Democratic lawmakers are tweeting that President Biden should pick a Black woman to fill the vacant seat after Breyer leaves the bench.

The White House has not released any statements on Biden’s next steps yet but the President said during the campaign trail that he would nominate a Black woman to the Supreme Court.

As recently as June 30, 2020, for example, Biden said, “We are putting together a list of African American women who are qualified and have the experience to be on the court. I am not going to release that until we go further down the line in vetting them as well.”

Here are some of the reactions to the Breyer news from members of Congress:

Sen. Patty Murray of Washington:

Rep. Frederica Wilson of Florida:

Rep. Andy Levin of Michigan:

Rep. Jamaal Bowman of New York:

Rep. Bobby Rush of Illinois:

Rep. Ayanna Pressley of Massachusetts:

Rep. Cori Bush of Missouri:

Rep. Marie Newman of Illinois:

Rep. Anthony Brown of Maryland:

Rep. Gwen Moore of Wisconsin:

Supreme Court Justice Stephen Breyer informed President Biden of his decision to retire last week, two sources familiar with the conversation told CNN.

He’s expected to formally announce his retirement at a White House event with Biden as early as tomorrow.

Biden will speak about his 40 year friendship with Breyer. Earlier, Breyer will inform his Supreme Court colleagues of his decision, two sources tell CNN.

Watch CNN legal analyst Joan Biskupic explain why Breyer chose to announce his retirement now:

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Sen. Lindsey Graham, a Republican from South Carolina, reacted to the Stephen Breyer retirement news on Wednesday, praising the Supreme Court justices and also noting that he expects Democrats to remain united to replace Breyer on the court. 

“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said. 

Graham has voted for Democratic Supreme Court nominees in the past, including Sonia Sotomayor and Elena Kagan. 

Read his full statement:

Senate Majority Leader Chuck Schumer on Wednesday reacted to the news of Supreme Court Justice Stephen Breyer’s retirement, writing that American owes Breyer “an enormous debt of gratitude.”

Schumer also vowed that President Biden’s nominee to replace Breyer will be confirmed with “all deliberate speed.” 

 Here’s Schumer’s full statement:

Then-Supreme Court nominee Judge Stephen Breyer speaks with reporters in May 1994 in the White House Rose Garden as US President Bill Clinton listens

Justice Stephen Breyer, a consistently liberal-leaning vote on the Supreme Court, is set to announce his retirement this week after serving nearly 28 years.

The announcement comes after Breyer repeatedly stated that he was undecided on his retirement plans as recently as last year.

Breyer, age 83, was nominated by former President Bill Clinton in 1994 and sworn in on Aug. 3, 1994.

With an unflappable belief in the US system of government and a pragmatic view of the law, he has served nearly three decades on the bench.

Breyer has sought to focus the law on how it could work for the average citizen. He was no firebrand and was quick to say that the Supreme Court couldn’t solve all of society’s problems. He often stressed that the court shouldn’t be seen as part of the political branches but recognized that certain opinions could be unpopular.

“If the public sees judges as ‘politicians in robes,’” he warned, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”

In April 2020, Breyer appeared in a public service announcement urging individuals to fill out their census questionnaires, emphasizing how vital the information will be as the country grapples with the coronavirus pandemic — a rare move for an active member of the Supreme Court.

Breyer is known for his support for a woman’s right to have a legal abortion, which became a point of controversy when he was given an award by Fordham University, a Jesuit school.

In 2015, in the case Glossip v. Gross, Breyer raised the question of whether the death penalty is unconstitutional in a 40-page minority dissenting opinion, which late Justice Ruth Bader Ginsburg joined. The judges voted 5-4 to uphold the use of a controversial drug for lethal injection in executions.

Early in his career, Breyer was law clerk for Supreme Court Justice Arthur Goldberg from 1964-1965.

Breyer was also special assistant to the assistant attorney general at the US Department of Justice from 1965 to 1967.

Breyer was a former assistant prosecutor during the Watergate hearings in the 1970s.

A little over a decade before he was sworn in to the Supreme Court, Breyer served as chief counsel for the US Senate Judiciary Committee from 1979 to 1980 and served as a judge for the US Court of Appeals for the First Circuit from 1981 to 1990. Breyer served as the chief judge of the US Court of Appeals for the First Circuit.

On the campaign trail, President Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Breyer is expected to stay on until the end of the term and until a replacement is confirmed.

Senate Democrats are confident that whomever President Biden picks as his nominee to replace Supreme Court Justice Stephen Breyer will receive enough votes to get confirmed, according to senior Democratic sources.

That’s because of both the math and the history. Since Senate GOP Leader Mitch McConnell pushed through a change in filibuster rules in 2017, it just requires a party-line, simple majority vote to advance a Supreme Court nominee.

In the 50-50 Senate, all Democrats need to stay united with Vice President Kamala Harris breaking the tie.

Moderate Democratic Sen. Joe Manchin has a long history of deferring to Presidents who make picks to the federal bench and the executive branch — backing two of three of then-President Trump’s choices, Neil Gorsuch and Brett Kavanaugh. He opposed Amy Coney Barrett because her confirmation vote was too close to the 2020 election.

Sen. Kyrsten Sinema, another key Democratic moderate, has also sided with Biden on nominations.

And there’s a strong likelihood that Biden could win over some key GOP swing votes, such as Sen. Susan Collins, who voted for then-President Obama’s choices of Elena Kagan and Sonia Sotomayor. Sen. Lindsey Graham did as well. Sen. Lisa Murkowski, who faces a Trump-inspired GOP challenger this year, also voted against Kavanaugh.

Of course, once the nomination is made and the vetting process occurs, the dynamics can certainly change.

Supreme Court Justice Stephen Breyer’s retirement leaves an empty seat to fill on the nine-member bench of the highest court in the US.

President Biden will choose someone for nomination, then there is a formal confirmation process, including public hearings. There’s a committee vote and a Senate floor vote. Here’s how all of this will work:

What happens after the nomination?

There will be hearings in the Senate Judiciary Committee, which is chaired by Sen. Dick Durbin.

How long does the process usually take?

It varies. Justice Amy Coney Barrett was sworn in on Oct. 26, 2020, a week before the 2020 election, after former President Trump nominated her a month beforehand following Justice Ruth Bader Ginsburg’s death. Here’s a deeper look into how long it has taken for past justices to be confirmed.

How many votes does it take to confirm a new justice?

It takes only a simple majority. Vice President Kamala Harris can break a 50-50 tie.

How long do most Supreme Court justices serve?

The average length of a Supreme Court tenure has grown a lot. Harvard Business Review did an actuarial analysis in 2018 and argued the average tenure over the next 100 years will grow to 35 years. It was 17 over the previous 100 years. Breyer was sworn in by former President Clinton in 1994.

Read more about the process here.

CNN’s Zachary B. Wolf contributed to this post.

Supreme Court Justice Stephen Breyer will formally announce his retirement with President Biden on Thursday, CNN’s Wolf Blitzer reported.

“That could come as early as tomorrow over at the White House,” Blitzer said.

However, Breyer does not plan to leave the court until a new nominee is officially confirmed and becomes a Supreme Court justice, Blitzer added. “So he will remain for weeks, if not a few months, whatever it takes to get a new nominee confirmed.”

This decision to retire was a difficult one to make for Breyer, Blitzer noted.

“He’s a relatively healthy 83-year-old. But he realizes … the politics of what’s going on right now,” Blitzer said. “There could be a change in the majority in the United States Senate after the midterm elections. And so this is a good time if the Democrats … could get somebody confirmed to replace him.”

When Breyer goes to the White House, Biden will thank him “for all the important work he’s done over these years,” Blitzer added. 

Breyer’s retirement paves the way for Biden to appoint a new Supreme Court justice. While the White House has not released any statements on Biden’s next steps, the President said in past comments that he would nominate a Black woman to the Supreme Court.

Justice Stephen Breyer’s retirement gives President Biden the opportunity to appoint a new Supreme Court justice.

On the campaign trail, Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court.

The President and the White House have not formally named any possible nominees. But potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer, and also worked as an assistant federal public defender and served on the US Sentencing Commission.   

Another possibility would be Justice Leondra Kruger, 45, who serves on the California Supreme Court and is a veteran of the US Solicitor General’s office.

Members of Biden’s team have previously stressed that they are seeking diversity for judicial appointments and that they are prepared to break from the norm and consider those whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders and civil rights and legal aid attorneys.  

See who President Biden could choose to replace Justice Breyer:

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