Justice Stephen Breyer to Retire From Supreme Court Following Months of Pressure

Susanna Conway

Mar 3, 2022

On January 26, Justice Stephen Breyer, the Supreme Court's oldest judge and one of its three remaining liberals, announced his retirement.

On January 26, Justice Stephen Breyer, the Supreme Court's oldest judge and one of its three remaining liberals, announced his retirement. In the months leading up to the justice’s announcement, Democrats across the country had been encouraging him to retire to make way for a younger liberal justice while the Democratic Party still has control in the Senate, which is the governmental body responsible for approving Judicial nominations. These encouragements were especially resounding following the death of Justice Ruth Bader Ginsburg in 2020, just months before the presidential election. Because the Senate was Republican-controlled at that time, then-president Donald Trump was able to quickly nominate and appoint Justice Amy Coney Barret to the bench in a move that shifted the Court’s 5-4 conservative majority to a greater 6-3. With the midterm elections approaching in November, and the Democrats at risk of losing the Senate, Breyer decided that the sooner he could make his announcement, the better.
Breyer’s long and successful judicial career made him an easy pick for President Bill Clinton in 1994 to replace Justice Harry Blackmun on the Supreme Court. Growing up in San Francisco, he attended Stanford University and graduated from Harvard Law School in 1964. Breyer specialized in administrative law, and held many prominent positions, such as the assistant to the United State’s Attorney General, before his nomination to the bench. Breyer believed that politics should not interfere with one’s judicial decision, and wrote over 520 opinions based on these principles. Breyer’s brother, Charles Breyer, stated that the justice “did not want to die on the bench”, another factor that contributed to his announced retirement.
According to White House sources, President Biden did not interfere with the justice's decision to step down despite encouragement from other liberal politicians who continue to fear a repeat of President Obama’s attempted nomination of Merrick Garland in 2016, which was blocked by the Republican-controlled Senate. Currently, the Democrats control the Senate, with the 50-50 split gaining a tie-breaking vote from liberal Vice President Kamala Harris. With the midterm elections approaching, however, a continuation of this majority is not guaranteed, making a speedy nomination an urgent issue for Democrats. Senate Minority Leader Mitch McConnell has repeatedly stated that if the Republicans take back the Senate this November, he will block any attempts made by the President to nominate a liberal justice, just like he did with Obama.
Should President Biden succeed in appointing a justice before the midterm deadline, he will fulfill his campaign promise of nominating the Court’s first black woman to the bench. Such contenders for this seat are thought to be Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit, California Supreme Court Justice Leondra Kruger, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina. Though prominent, a Biden nomination will maintain the Court’s 3-6 conservative majority, having no impact on the Court’s current reigning ideology.