Supreme Court Justice Breyer to retire; Biden to fill vacancy

U. S. Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press on Wednesday.

Breyer, 83, has been a liberal fixture on a court that has grown increasingly conservative in recent years.

The sources spoke on condition of anonymity so as not to preempt Breyer’s eventual announcement. NBC first reported the justice’s plans.

Breyer has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.

Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also makes conservative Justice Clarence Thomas the oldest member of the court at 73.

Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina’s presidential primary in 2020.

Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.

Breyer’s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in twin cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses, but allowed one to remain on the grounds of the state capitol in Austin, Texas.

In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.

He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes had the air of an absent-minded professor. In fact, he taught antitrust law at Harvard earlier in his professional career.

He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.

Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.

And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, Breyer’s frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.

“It is not often that so few have so quickly changed so much,” Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.

His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter’s defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.

His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes. Breyer’s opinions were notable because they never contained footnotes. Breyer was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.

“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that your right; there is no such proof.”

Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a stellar academic career at Stanford, graduating with highest honors. He attended Oxford, where he received first-class honors in philosophy, politics and economics.

Breyer then attended Harvard’s law school, where he worked on the Law Review and graduated with highest honors.

Breyer’s first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department’s antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.

Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children—daughters Chloe and Nell and a son, Michael—and six grandchildren.

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15 thoughts on “Supreme Court Justice Breyer to retire; Biden to fill vacancy

  1. So what if there is black male, white male, white female, Hispanic or any other ethnicities that are more qualified at the time of the appointment. Discrimination at its highest level.

    1. Because Clarence Thomas and Amy Coney Barrett were selected by Republicans because they were the most qualified candidates and not because of their race or gender?

      Heck, Republicans didn’t even have the spine to vote Merrick Garland down. So, spare me. The Supreme Court lost their impartiality argument thanks to Mitch McConnell, that gravedigger of American democracy…

  2. Bingo, Larry. What a shallow person is Biden, basing his choice on skin pigmentation…but what else would you expect from such a doddering old liberal fool.

    1. Go look at Indianapolis’ own Sarah Pitlyk, nominated to the federal bench forever despite having no trial or litigation experience and drawing the rare “not qualified” from the American Bar Association.

      Then get back to me about how Biden should pick his judges.

    2. Giving people of color important positions based primarily upon skin color makes liberals feel great about themselves. It’s the woke thing to do nowadays.

      I’d prefer they pick the best candidate regardless of creed, color, sex etc. but that’s too altruistic for libs to accept.

  3. To state that the first qualification for a nominee is the color of their skin ahead of experience, education or intelligence is racism pure and simple.

  4. Democrats’ racism and sexism is vile and cancerous. Unbelievable the literal most important job in the country is being filled by affirmative action quotas.
    And yes, Joe B, ACB is one of the most qualified justice’s I have ever seen, but it did help that she was female to take a card away from you liberals. It also made it difficult to manufacture a public sexual assault allegation because you don’t like her politics. You Democrats are beneath contempt.

    1. I’m not a Democrat, Chuck.

      Remind me why Clarence Thomas was chosen despite being a federal judge less than two years. I find it very hard to believe he was the most qualified federal judge in America.

      And remind me why this is any different than when Kennedy was pressured into retiring.

      If you don’t like how the Supreme Court game now operates, go take it up with Mitch McConnell. He’s the one that did everything in his power to prevent Obama from nominating first any federal court judges, then escalating to blocking Merrick Garland.

      I’d consider retirement of Thomas or Alito, allowing Biden to pick the replacement, a suitable peace treaty if you’d like the situation to change. That would restore the 5-4 conservative majority that should be the case anyway.

  5. Wow. Sure are a lot of white males commenting here that seem to have been triggered by the notion of a black female serving on the SCOTUS. Apparently there is a concern that no black female is qualified for the job (at least that’s the impression their comments are making). The thoughtful reaction would to wait and see what the credentials (education and experience) the nominee has before opening one’s mouth.

    1. Last I saw we’ve had a black male President and black female VP in the past 14 years. Nobody commenting here could care less whether we have blacks or whites or male or female. Pick the best candidate. To state you are picking someone because they are of a particular race or sex is discrimination of the highest order. You don’t want discrimination until it fits your narrative. Hypocrisy

    2. Larry P. – Have you never heard the old expression that “when you find yourself in a hole, stop digging”? Thanks for continuing to prove my points.

  6. As a wise Supreme Court Justice once said, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    It’s pretty clear and simple.

    1. Ah yes, the decision that many directly correlate to the re-segregation of the south and the allowance of the Jim Crow laws to be implemented under a new name.

      Solid reference to prove the point that you have no idea what you speak of, Donnie

  7. Whoever Biden nominates assaulted me at a party 35 years ago. I’m not exactly sure where it was or who was there. Someone may or may not know about it. I might have told a friend about it. Don’t ask me to come to DC and testify because I don’t like to fly.

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