Supreme Court Justice Stephen Breyer plans to retire, setting up a seismic confirmation battle at the start of a midterm election year as President Joe Biden tries to find his footing with his agenda stalled and Democrats divided in Congress.
Breyer is expected to stay on until the end of the court term and until a replacement is confirmed, a well-placed source familiar with the matter told CNN.
Although Biden’s pick will not change the balance of the court, given that Breyer will almost certainly be replaced with a fellow liberal, the new nominee is expected to be much younger and could serve on the court for decades. The court currently has six conservative justices appointed by Republican presidents, and three liberals appointed by Democrats.
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On the campaign trail, Biden vowed that if he were to get a vacancy he would fill it with an African American 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.
Another possibility would be Justice Leondra Kruger, 45, who serves on the California Supreme Court and is a veteran of the US Solicitor General’s office. Members of Biden’s team have previously stressed that they are seeking diversity for judicial appointments and that they are prepared to break from the norm and consider those whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders and civil rights and legal aid attorneys.
Breyer, 83, a consistent liberal vote on the Supreme Court with an unflappable belief in the US system of government and a pragmatic view of the law, has served nearly three decades on the bench.
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 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.
Breyer’s years on the court
At oral arguments and in conference, Breyer has seen himself as a problem solver. He brought with him the experience of working in Congress as the chief counsel of the Senate Judiciary Committee in the late 1970s and an understanding of what went into many of the statutes that eventually made their way to the court. He sought consensus when possible but remained true to his liberal roots in areas such as the death penalty, affirmative action, abortion, gun rights and campaign finance.
In his later years on the court, he was best known for a dissent he wrote in 2015 in a case concerning execution by lethal injection. He took the opportunity to write separately and suggest to the court that it take up the constitutionality of the death penalty. In the opinion, Breyer wrote that after spending many years on the court reviewing countless death penalty cases, he had come to question whether innocent people had been executed. He also feared that the penalty was being applied arbitrarily across the country. He noted that in some cases death row inmates could spend years — sometimes in solitary confinement — waiting for their executions.
“And so I put together this evidence to say this is not what people expected when they wrote the cases upholding the death penalty more than 40 years ago,” Breyer told CNN’s Wolf Blitzer in 2015.
“And therefore I think it’s time to revisit the issue,” he said, though that chance never came.
Indeed, in 2019, after the appointments of Justices Neil Gorsuch and Brett Kavanaugh had turned the court to the right, Breyer stayed up most of the night once to write a dissent when the court denied a stay of execution for an Alabama inmate challenging the state’s three-drug protocol. In the dissent, he noted that the conservative majority could have chosen to discuss the case later in the day at a regularly scheduled closed-door conference, but they had refused to do so.
“Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our court this evening,” Breyer wrote in an opinion released at 3 a.m. He said that “what is at stake” is the “right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment.”
In early 2021, after Justice Amy Coney Barrett had joined the court, he blistered the Trump administration for racing to reinstate the federal death penalty after a nearly two-decade pause. “How just is a legal system that would execute an individual without consideration of a novel or significant legal question that he has raised?” Breyer queried in another late-night opinion.
As the new conservative majority solidified during the Trump administration, Breyer signaled it was moving too aggressively to overturn precedent. The case at hand was not about abortion, but he made clear he was worried about the stability of the law and the future of long-standing rulings such as Roe v. Wade.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” Breyer wrote at the time.
Breyer — always rooted in an optimistic view of the world — defended the institution of the court in 2021 as liberals sought to add members in order to dilute the conservative majority and as Biden commissioned a 36-member presidential commission to discuss reform proposals. He expressed concern about any so-called “court packing” proposals that would change the structure of the court.
“It’s an institution that’s fallible, though over time it has served this country pretty well,” he told CNN’s Joan Biskupic in an interview last October. “As mother used to say: every race, every religion, every point of view possible is held by people in this country. And it’s helped them to live together.”
Path to the bench
Born in San Francisco, Stephen Breyer is the son of Irving, who worked as a legal counsel for the San Francisco Board of Education, and Anne, who volunteered for the League of Women Voters. He attended Harvard Law, later teaching there, and he worked for Sen. Ted Kennedy, a Massachusetts Democrat who would become a mentor.
In 1980, President Jimmy Carter appointed Breyer to the 1st US Circuit Court of Appeals. Clinton eventually tapped him to replace Justice Harry Blackmun, and the Senate approved the nomination by 87-9. Breyer was sworn in as a justice in August 1994.
Clinton said Breyer had “proven that he can build an effective consensus and get people of diverse views to work together for justice’s sake.”
“He has a clear grasp of the law, a boundless respect for the constitutional and legal rights of the American people, a searching and restless intellect, and a remarkable ability to explain complex subjects in understandable terms,” Clinton said.
This last court term, Breyer was chosen by Chief Justice John Roberts to write a 7-2 opinion allowing the Affordable Care Act to remain in place, and he also wrote the opinion on an important school speech case that divided the court 8-1. It was Breyer, though, who joined with his liberal colleagues penning the 6-3 dissent when the court delivered another blow to public-sector unions — breaking along ideological lines.
In 2016, Justice Anthony Kennedy chose Breyer to pen a decision that struck down a restrictive abortion access law in Texas that critics said would have shuttered all but a handful of clinics in the state.
Kennedy trusted that Breyer would write a straightforward opinion that Kennedy, the swing vote, could join.
Although Breyer is known for his bridge-building skills, there were times when he can speak forcefully.
He wrote a scathing dissent in 2007 when the court struck down efforts in two public school systems to take race into account when making school placement assignments.
He read parts of his dissent — twice as long as any he’d ever written — from the bench. He said he was worried that the majority of the court was jeopardizing Brown v. Board of Education, the landmark opinion declaring school segregation unconstitutional.
“The last half century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,” Breyer wrote. “To invalidate the plans under review is to threaten the promise of Brown.”
Prolific writer
Breyer is a prolific writer off the bench. One book, called “Active Liberty: Interpreting Our Democratic Constitution,” was written in response to Justice Antonin Scalia’s judicial philosophy called “originalism,” which stressed that the Constitution should be interpreted based on its original public meaning. The two justices appeared together on occasion to discuss their opposing views, to the delight of law school audiences.
Breyer was also on the losing side of Bush v. Gore, the 2000 decision that decided the presidential election for George W. Bush. Always an optimist, Breyer pointed out that while he thought the case had been wrongly decided, the ruling was accepted by the public and it caused no one to demonstrate in the streets.
Breyer cares deeply about the court’s public perception and lamented privately that the nomination process had become such a spectacle.
In public, however, he largely avoids delving into the subject. “You have to remember that I was not a nominating or confirming person,” he would tell audiences. He’d point out that asking his opinion about who should be nominated to the bench or how they should be confirmed was like “asking for the recipe for chicken a la king from the point of view of the chicken.”
Ever the charming, absent-minded professor, he can unleash long legal hypothetical questions from the bench that could confuse even the most experienced advocate.
He taught himself French by reading Marcel Proust, and he delights in his three children; his wife, Joanna Hare; and their grandchildren.
Above all, Breyer has cared about collegiality.
“There’s no reason we can’t be friends,” he said of his colleagues during the 2015 CNN interview. “There’s no reason that human beings cannot differ civilly on matters of great importance.”
Here are potential nominees who have been on observers’ short list.
DC Circuit Judge Ketanji Brown Jackson
Biden has already elevated Judge Ketanji Brown Jackson once, appointing her last year to the US Court of Appeals for the District of Columbia, which is considered the second-most powerful federal court in the country. Previously, the 51-year-old judge served on the federal district court in DC. Because of that appellate appointment, she’s already been through a vetting process that included an interview with the President himself. Fittingly, she clerked for Breyer and holds degrees from Harvard and Harvard Law School. She also served as an assistant federal public defender, making her a prime example of the Biden’s White House focus on appointing judges with backgrounds that are outside the typical prosecutor and Big Law box.
As a judge, Jackson has ruled on high profile cases including the Don McGahn congressional subpoena lawsuit (where, as a district court, she ordered the former Trump White House counsel to comply with the House’s subpoena). As an appellate judge, she signed on to the recent opinion ordering the disclosure of Trump White House documents being sought by the House January 6 committee — a case Trump has now asked the Supreme Court to review. If she is confirmed to the court while the justices were still considering the case, she’d likely be asked to recuse.
California Supreme Court Justice Leondra Kruger
Kruger, now 45, was the youngest person to be appointed to the California Supreme Court when then-Gov. Jerry Brown nominated her in 2014.
Kruger is intimately familiar with the Supreme Court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration. While in the Solicitor General’s office, she argued 12 cases in front of the Supreme Court representing the government. At the Justice Department, she also earned the Attorney General’s Award for Exceptional Service, the department’s highest award for employee performance, in 2013 and 2014.
At the California Supreme Court, she has authored notable opinions on the 4th Amendment — holding that law enforcement could not search a woman’s purse without a warrant after she declined to provide a driver’s license — and upholding a California law that requires law enforcement to collect DNA samples as well as fingerprints from all persons arrested for or convicted of felony offenses.
Though she is said to be well-liked among the alumni of the Solicitor General’s office, she has not yet received the thorough vetting that other potential nominees have gone through.
South Carolina US District Court Judge J. Michelle Childs
Childs, a judge on South Carolina’s federal court, is said to have a major booster in House Majority Whip James Clyburn, a Biden ally who helped deliver South Carolina for the eventual nominee in the 2020 Democratic primary. Just last month, Biden nominated Childs to the US Court of Appeals for the District of Columbia Circuit, and the nomination remains pending.
A graduate of the University of South Carolina School of Law, Childs does not have the Ivy League pedigree shared by eight of the nine justices. Her cheerleaders have touted her public-school education and other elements of her background as an advantage for Democrats, according to a 2021 New York Times report, and as a way to fight back against claims that the party has become too elitist in its makeup.
In addition to a decade spent in private practice, the 55-year-old served as a state court trial judge on the South Carolina Circuit, as the deputy director of the South Carolina Department of Labor, Licensing and Regulation, and as a commissioner on the South Carolina Workers’ Compensation Commission.
Other names that have been floated
District Judge Wilhelmina “Mimi” Wright, a judge on Minnesota’s federal district court whose consideration would likely please Sen. Amy Klobuchar, the Minnesota Democrat who sits on the Judiciary Committee.
Circuit Judge Eunice Lee, a former New York public defender whom Biden nominated to the Second Circuit on the recommendation of Senate Majority Leader Chuck Schumer.
Circuit Judge Candace Jackson-Akiwumi, an alumna of Chicago’s public defender’s office whose appointment by Biden to the Seventh Circuit was cheered by Senate Judiciary Chair Dick Durbin of Illinois.
Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund.
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