The most senior mem­ber of the Unit­ed States Supreme Court’s left wing bloc plans to step down at the end of the Court’s cur­rent term, allow­ing Pres­i­dent Joe Biden to nom­i­nate a suc­ces­sor dur­ing the cur­rent Unit­ed States Con­gress, in which Democ­rats have a bare, fifty vote Sen­ate major­i­ty and no fil­i­buster stand­ing in the way of a con­fir­ma­tion vote, sev­er­al big media out­lets are reporting.

Brey­er, eighty-three, is one of two jus­tices nom­i­nat­ed by Pres­i­dent Bill Clin­ton to serve on the Supreme Court. He was con­firmed on July 29th, 1994 by a vote of eighty-sev­en to nine, and began his tenure on August 3rd, 1994.

Brey­er replaced retir­ing Jus­tice Har­ry Black­mun, who joined the Court dur­ing the Nixon pres­i­den­cy and served for over three decades.

Pri­or to his ele­va­tion to the Supreme Court, Brey­er was the Chief Judge of the Unit­ed States Court of Appeals for the First Circuit.

Fol­low­ing Brey­er’s con­fir­ma­tion, many years elapsed in which there was no Supreme Court vacan­cy. It was not until 2005, when Chief Jus­tice William Rehn­quist died, that a new jus­tice joined the Court (John Roberts). The fol­low­ing year, Roberts was joined by Samuel Ali­to, who replaced retir­ing Jus­tice San­dra Day O’Con­nor. Both Ali­to and Roberts were nom­i­nat­ed by George W. Bush.

After Barack Oba­ma’s elec­tion, two more jus­tices stepped down, this time from the Court’s lib­er­al wing: David Souter and John Paul Stevens. They chose to retire at a time when the pres­i­den­cy and Sen­ate were con­trolled by Democ­rats, ensur­ing that their suc­ces­sors would not tilt the Court fur­ther to the right.

Jus­tices Ruth Bad­er Gins­burg and Stephen Brey­er, how­ev­er, opt­ed not to retire dur­ing that peri­od, and remained on the Court. Gins­burg died just weeks before the Demo­c­ra­t­ic vic­to­ry in the 2020 pres­i­den­tial elec­tion, allow­ing Don­ald Trump and Mitch McConnell to install Amy Coney Bar­rett on the Court in her stead.

Gins­burg made it clear she did not want a suc­ces­sor nom­i­nat­ed and con­firmed pri­or to the elec­tion, but Repub­li­cans ignored her wish­es. They were in a posi­tion to do so and they did. Brey­er is mak­ing sure Repub­li­cans won’t get the oppor­tu­ni­ty to do that with the seat he cur­rent­ly holds.

Brey­er has been under pres­sure to retire before the 2022 midterms from pro­gres­sive activists and Demo­c­ra­t­ic lead­ers. Though Brey­er opt­ed not to retire last year, he made it clear in inter­views that he was open to retir­ing before the midterms, say­ing that many fac­tors would dri­ve his decision.

Brey­er also said he agreed with for­mer Jus­tice Rehn­quist that “decid­ing when to step down from the Court is not a judi­cial act” and that it was not inap­pro­pri­ate for a jus­tice to take into account the par­ty or pol­i­tics of the sit­ting president.

“There are a lot of blurred things there, and there are many con­sid­er­a­tions,” he told The New York Times. “They form a whole. I’ll make a decision.”

It appears Jus­tice Brey­er has now made his deci­sion: he will exit the Court once this term ends, allow­ing for an order­ly nom­i­na­tion and con­fir­ma­tion process to play out in the mean­time. Pres­i­dent Joe Biden has pledged to nom­i­nate a Black woman to suc­ceed Brey­er, and the White House has con­sis­tent­ly reit­er­at­ed that Biden intends to hon­or that cam­paign promise. Biden’s nom­i­nee would be the first Black woman on the Court in its entire two hun­dred plus year history.

The White House is plan­ning an event on Thurs­day to dis­cuss fill­ing the Court vacan­cy, accord­ing to cor­re­spon­dents who cov­er the exec­u­tive branch.

Mean­while, Sen­ate Democ­rats have start­ed mak­ing their own plans.

“(Sen­ate Major­i­ty Leader Schumer is look­ing at a quick time­frame to con­firm Biden’s nom­i­nee to the court — and he will fol­low a sim­i­lar time­line that Repub­li­cans employed to con­firm Amy Coney Bar­rett to the court in 2020, per a source famil­iar with this think­ing,” CNN’s Manu Raju report­ed. 

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

“Once the pick is made, Schumer is look­ing at a time­frame that could get the Biden pick con­firmed in about a month or so, per source.”

Some names being dis­cussed that could end up on Biden’s short­list are:

• D.C. Cir­cuit Judge Ketan­ji Brown Jackson
• Cal­i­for­nia Supreme Court Jus­tice Leon­dra Kruger
• Dis­trict Judge J. Michelle Childs
• Dis­trict Judge Wil­helmi­na “Mimi” Wright
• Cir­cuit Judge Eunice Lee
• Cir­cuit Judge Can­dace Jackson-Akiwumi
• Civ­il rights attor­ney Sher­ri­lyn Ifill

Brown Jack­son’s name tops most of the lists we’ve seen, but of course, Pres­i­dent Biden has oth­er options. Once the new jus­tice is seat­ed, no mem­ber of the Court’s lib­er­al bloc is expect­ed to be old­er than seventy.

The old­est jus­tices in the right wing bloc are Clarence Thomas (sev­en­ty-three) and Samuel Ali­to (sev­en­ty-one). The oth­er mem­bers of the right wing bloc (Roberts, Kavanaugh, Gor­such, Coney Bar­rett) are much younger. Coney Bar­rett is forty-nine; Roberts, Kavanaugh, and Gor­such are in their fifties or sixties.

Expan­sion of the Supreme Court is like­ly the only way to address its cur­rent, dan­ger­ous right wing ide­o­log­i­cal dom­i­nance in the near future, as abol­ish­ing life­time tenures would take a con­sti­tu­tion­al amend­ment and there are unlike­ly to be any fur­ther Supreme Court retire­ments in the next few years.

When Jus­tice Brey­er makes a for­mal state­ment, we’ll post that here.