Supreme Court Justice Stephen Breyer is expected to announce his retirement this week, after serving nearly 30 years on the bench.
Breyer’s legacy: Appointed in 1994 by President Bill Clinton, Breyer has sought to focus the law on how it could work for the average citizen.
He was no firebrand and was quick to say that the Supreme Court couldn’t solve all of society’s problems. He often stressed that the court shouldn’t be seen as part of the political branches but recognized that certain opinions could be unpopular.
“It is wrong to think of the court as another political institution,” Breyer told an audience at Harvard Law School in 2021. “It is doubly wrong to think of its members as junior league politicians.”
“If the public sees judges as ‘politicians in robes,'” he warned, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”
The news of Breyer’s retirement comes as the court’s conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.
Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden’s vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect. The law is the strictest in the nation and bars abortion before most women even know they are pregnant.
What’s next?: On the campaign trail, President Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer and also worked as an assistant federal public defender and served on the US Sentencing Commission.
Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden’s nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.
Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.
Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.
“I thank Justice Breyer for his decades serving the Court and the nation. He has been a trusted voice on the bench with a first-rate legal mind,” Durbin said in a statement.
“With this Supreme Court vacancy, President Biden has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice. I look forward to moving the President’s nominee expeditiously through the Committee.”
After Biden’s selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.
Breyer is expected to stay on until the end of the term and until a replacement is confirmed.