SCOTUS Retirement: Stephen Breyer Stepping Aside

WWBD? (What will Biden do?)

We just got breaking news that Democratic appointee Stephen Breyer will retire from the Supreme Court. Here are some initial thoughts for you—and you can always subscribe to my newsletter here:

Biden’s biggest test yet 

Justice Stephen Breyer will retire from the Supreme Court at the end of this term, NBC first reported today, teeing up a major decision to fill the vacancy left by the 83-year-old Justice.

President Clinton first picked Breyer for the High Court in 1994, replacing Justice Harry Blackmun, and Breyer’s spent 27 years as a consistent jurist in favor of civil rights, choice, fairly robust federal power and prisoners’ rights, in many cases. He’s been part of a center-left voting bloc, but not a “radical progressive.” 

Pres. Biden could replace him with an institutionalist likely to play a similar role, or with a bolder, more visionary liberal jurist, as many progressives are advocating—especially at a time when Republicans have used raw power to shape the High Court and appeals courts. 

We don’t know who Biden will pick. We do know he vowed to put a Black woman on the Court, which would be a first, and the White House reiterated his pledge on Wednesday.

Counting to 50, and to 9…

Early reporting suggests the White House eyeing Judge Ketanji Brown Jackson for this vacancy. She was recently confirmed by the U.S. Court of Appeals for the District of Columbia, with unanimous backing by Senate Democrats plus three Senate Republicans (Collins, Murkowski, Graham). 

For all the talk about Senate rules and the filibuster, the rules were already changed for straight majority votes on SCOTUS nominees. So Biden can win this by just holding his caucus together.

The Court aims to be apolitical but it is staffed through a political process—what Presidents want and what the Senate does—and that process has only gotten more partisan in the recent era. 

Obama learned the hard way that tailoring a pick “for Republicans” may not even yield a hearing, let alone their votes. Now Biden, who mused last week that he was “surprised” by how obstructionist Mitch McConnell has been, must decide how to get ironclad commitments from his own party. He can’t afford a sequel of the opaque, delayed process with Senators Sinema and Manchin over spending—and he can’t afford to “hope” a handful of Senate Republicans might make up for those two votes heading into the midterms.

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When you know, you know?

Breyer’s expected retirement comes after an extended period of quiet pressure in Washington, where the liberal legal establishment and Democratic leaders hoped Breyer would step aside while Democrats still controlled the Senate—which is no certainty after another election. The stakes felt even higher after Republicans managed to get three picks onto the Court in one Trump term (two seats opening up naturally, a third hijacked by McConnell from the Obama-Biden administration).

Talking with Justice Breyer in 2015.

Breyer was assiduously nonpartisan and there were some reports the pressure made him dig in for longer. About seven years ago, I sat with him in one of the ornate meeting rooms at the Supreme Court, and amidst discussions of international law and human rights, I respectfully raised the question of how you choose to retire, in this rare job where it’s completely up to you. He gingerly replied “good question,” and then offered only:

“I feel I will know. I feel so far, I seem to be able to do the job, and there will perhaps be some indication, or I’ll think about it, but I haven’t thought it through enough yet to give you much guidance on when I’ll retire.”

Some Justices seem to put off the question well into old age, suggesting a willingness to punt it indefinitely, or likely die in office. Now we know Breyer meant his answer, he thought he’d know, and he was open to choosing to retire.