The vacancy will give President Biden his first chance to name a new justice. He has promised to nominate a Black woman.
WASHINGTON — Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his pledge to name a Black woman to the court.
Mr. Biden is expected to formally announce the retirement at the White House on Thursday, according to one person familiar with the planning for the event.
Justice Breyer, 83, the oldest member of the court, was appointed in 1994 by President Bill Clinton. After the death of Justice Ruth Bader Ginsburg in 2020 and the appointment of Justice Amy Coney Barrett by President Donald J. Trump, he became the subject of an energetic campaign by liberals who wanted him to step down to ensure that Mr. Biden could name his successor while Democrats control the Senate.
With conservatives now in full control of the court, replacing Justice Breyer with another liberal would not change its ideological balance or affect its rightward trajectory in cases on abortion, gun rights, religion and affirmative action.
But Democrats, who control the Senate now by the narrowest of margins, may have to act quickly if they want to ensure that the court does not become even more conservative. If they lose even a single seat in the midterm elections, the balance of power in the chamber would flip, making it much more difficult for Mr. Biden to win confirmation for his nominee.
Justice Breyer’s opinions have been those of a moderate liberal, marked by deference to experts, the ad hoc balancing of competing interests and alertness to fundamental fairness. His goal, he said, was to reinforce democracy and to supply workable legal principles for a sprawling and diverse nation.
He has been more likely to vote against criminal defendants than other liberal justices. On the other hand, as the years progressed, he has grown increasingly hostile to the death penalty.
He played a starring role in the court’s last term, writing majority opinions rejecting a challenge to the Affordable Care Act and protecting the free speech rights of a high school student.
In an interview in August, Justice Breyer said he was struggling with the question of when to step down.
“There are many things that go into a retirement decision,” he said.
He recalled approvingly something Justice Antonin Scalia had told him.
“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer recalled. “That will inevitably be in the psychology” of his decision, he said.
“I don’t think I’m going to stay there till I die — hope not,” he said.
Over the years, Justice Breyer 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 said in April in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
On the bench, his demeanor was professorial, and his rambling questions, often studded with colorful hypotheticals, could be charming or exasperating. But they demonstrated a lively curiosity and an open mind.
If Mr. Biden succeeds in winning confirmation for his nominee to replace Justice Breyer, that justice is very likely to serve for decades.
Speculation about whom Mr. Biden might nominate has centered on two possibilities: 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 law clerk to Justice Breyer, and Justice Leondra R. Kruger of the California Supreme Court, who graduated from Yale Law School and served as a law clerk to Justice John Paul Stevens.
Some of Mr. Biden’s supporters have urged him to cast his net wider and to consider candidates without Ivy League degrees or Supreme Court clerkships but with a diversity of experience.
They pointed to, for instance, Judge J. Michelle Childs of the Federal District Court in Columbia, S.C., a graduate of the University of South Carolina’s law school and a former law firm partner who also worked in state government. In December, Mr. Biden said he would name Judge Childs to fill a vacancy on the D.C. Circuit, a sign that she may be a serious contender for Justice Breyer’s seat.
Some liberals questioned Justice Ginsburg’s decision not to retire during the administration of President Barack Obama in spite of her advancing age and bouts with cancer. Her death at the age of 87 gave Mr. Trump a chance to make his third appointment to the court, cementing a 6-to-3 conservative majority.
Justice Breyer’s decision to step down may have been influenced by Justice Ginsburg’s experience.
Source: nytimes.com, Adam Liptak, January 26, 2022
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