Justice Stephen Breyer to retire, make room for first Black woman in Supreme Court

Justice Stephen Breyer announces retirement after 27 years on the Supreme Court, leaving Biden to nominate a successor. Wiki Commons 

Stephen Breyer, associate justice of the Supreme Court, announced Jan. 27 in a letter to President Joe Biden that he will be stepping down from his role when the court is dismissed for summer recess — likely late June or early July 2022 — after 27 years of service. 

Breyer’s retirement will give Biden the opportunity to nominate a replacement and reinforce the court’s liberal minority. On the 2020 campaign trail, Biden promised that he would nominate the first Black woman to the Supreme Court if given the chance. Biden confirmed his intent to fulfill this promise in his Jan. 27 remarks. 

"The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said.

After the death of Justice Ruth Bader Ginsburg in 2020, Breyer faced pressure from progressives to retire while Democrats held both the White House and the Senate. 

Ginsburg had reportedly put off retiring while President Obama was in office, believing that Hillary Clinton would win the 2016 election. However, after her death in 2020, she was replaced with Justice Amy Coney Barrett, nominated by President Trump just days before the 2020 election — a decision that cemented the Supreme Court’s 6-3 conservative majority.

In addition to confirming his retirement, Breyer’s letter to the president expresses his gratitude for the time he’s spent as part of the federal judicial system. 

“I have found the work challenging and meaningful,” Breyer wrote. “My relations with each of my colleagues have been warm and friendly.”

Chapman University law professor Denis Binder describes Breyer as one of the lesser-known justices. Appointed by President Bill Clinton in 1994, Breyer’s decisions have included issues of voting rights, the death penalty, the environment, reproductive rights, and most recently, the Affordable Care Act. 

“Breyer was one of the more subtle but important justices,” Binder said. “(He) was very influential behind the scenes in formulating opinions.”

Potential nominees for Breyer’s vacancy include California Supreme Court Justice Leondra Kruger and Ketanji Brown Jackson, a former clerk for Justice Breyer who was nominated to the United States Court of Appeals for the District of Columbia Circuit by President Biden in 2021.

Chapman University political science professor Ronald Steiner believes that appointing a Black woman is a step in the right direction to increase diversity in the courts.

“We’ve had 115 supreme court justices in the history of the United States and 90% of them have been white, Christian men,” Steiner told The Panther. “The fact that somebody says that we’ve really got to do something to stop that trend — thank goodness.”

Randall Avila, executive director of the Republican Party of Orange County, explained that Republicans are watching closely to see who Biden selects as his nominee. 

“I think that one of the more important things for (Biden) politically is to make sure that he is appointing someone who can get the vote and be appointed to the Supreme Court and also send a message to the voters,” Avila told The Panther. “Is he going to continue to appease the base and the far left in his party, or is he going to moderate and pick someone who is acceptable to the majority of Americans?”

A similar sentiment was voiced by Senate Minority Leader Mitch McConnell, who urged President Biden to “govern from the middle” and “unite America.” 

“The president must not outsource this important decision to the radical left,” McConnell said in a press release. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”

In 2020, McConnell pushed for the rapid confirmation of Justice Amy Coney Barrett — a striking reversal of his response to former President Obama’s 2016 nomination of Merrick Garland to the Supreme Court after the death of conservative Justice Antonin Scalia. McConnell declared that all attempts by Obama to nominate a new candidate would be nullified. 

Garland’s nomination was subsequently blocked by the Senate, paving the way for President Trump’s nomination of Justice Neil Gorsuch in 2017. 

Ada Briceño, Chairwoman for the Democratic Party of Orange County and member of the Democratic National Committee told The Panther that she is excited to see who Biden nominates for this position, and she hopes they will back many of the party’s progressive ideals. 

“It is important for this (nominee) to be a strong warrior for reproductive freedom,” Briceño said. “We need someone that stands with the values that the Democratic Party holds.”

This term, the Supreme Court has heard major cases on gun control, religion and abortion. In 2021, the court refused to block a Texas law that banned abortions after six weeks resulting in a major outcry among progressives. 

Biden’s nominee is expected to be confirmed and ready to serve by Oct. 4 at the start of the court’s new term. Democrats currently hold a 50/50 split in the Senate, and Vice President Kamala Harris is able to cast the tie-breaking vote. Assuming Democrats remain united, they will likely be able to approve a nominee without Republican support. 

“It’s exciting to see the talent that will continue to come out during this process,” Briceño said. “As a woman and as a person of color, I know it is going to be a great moment for America.”