Supreme Court Justice Stephen Breyer
Supreme Court Justice Stephen Breyer (U.S. Supreme Court photo)

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.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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