Supreme Court Justice Stephen Breyer to retire at end of term: reports

Associate Justice Stephen Breyer sits during a group photo of the justices at the Supreme Court in Washington, D.C., on April 23, 2021.
Associate Justice Stephen Breyer sits during a group photo of the justices at the Supreme Court in Washington, D.C., on April 23, 2021. | Erin Schaff-Pool/Getty Images

U.S. Supreme Court Justice Stephen Breyer will reportedly retire after the current term, offering President Joe Biden his first chance at a high court nomination. 

NBC News reported Wednesday that “people familiar with his thinking” say that the 83-year-old left-leaning justice appointed by President Bill Clinton in 1994 is planning to retire at the end of the term.

The move comes as progressives began calling on Breyer last year to retire ahead of the 2022 midterm elections since Democrats hold control of the White House and U.S. Senate. Breyer is the court’s oldest member. Conservatives have accused progressives of bullying Breyer into retirement. 

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His retirement comes after former President Donald Trump appointed three conservative-leaning justices to the nation’s highest court — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — giving the court a conservative majority. 

Although Breyer has yet to make an official announcement, his intentions of retiring were confirmed by Senate Majority Leader Chuck Schumer, D-N.Y.

“For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen Breyer has served his country with the highest possible distinction,” Schumer said in a statement. “He is, and always has been, a model jurist.”

Schumer vowed to give Biden’s nominee to replace Breyer a “prompt hearing in the Senate Judiciary Committee” and will “be considered and confirmed by the full United States Senate with all deliberate speed.”

As Biden has pledged to nominate the first black woman to the Supreme Court, Sen. Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, tweeted that “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,” he wrote.

Two individuals thought to be contenders to replace Breyer include 51-year-old Judge Ketanji Brown Jackson and 45-year-old California Supreme Court Justice Leondra Kruger.

Jackson was nominated by Biden last year to serve on the U.S. Court of Appeals for the District of Columbia Circuit after serving on the U.S. District Court for the District of Columbia since 2013. Kruger is an associate justice of the Supreme Court of California. 

A native of San Francisco, Breyer attended Harvard Law School and served on the U.S. Court of Appeals for the 1st Circuit for 14 years. 

Oyez, a website based in the Chicago-Kent College of Law that focuses on the history of the Supreme Court, labeled Breyer “the most pragmatic justice on the bench.”

“His decisions are often guided by maneuvering around the real life consequences to the people affected by the decision. This principle can abandon the strict interpretation some of his fellow justices favor, particularly the more conservatives [sic] ones,” stated Oyez.

“Breyer opposes the originalism approach, which is most often associated with Justice [Antonin] Scalia and demands a strict interpretation of the language of the Constitution.”

Last June, Breyer authored the majority opinion in the case of Mahanoy Area School District v. B.L., which ruled that a Pennsylvania school overstepped its bounds when it punished a cheerleader for a profanity-laden social media post.

In an 8-1 decision, Breyer wrote that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.”

“Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school — in a word or two, criticism of the rules of a community of which B. L. forms a part,” wrote Breyer.

“This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B. L.’s posts, while crude, did not amount to fighting words.”

Breyer authored the majority opinion in the abortion-related case of June Medical Services v. Russo, which struck down a Louisiana law requiring abortionists to have admitting privileges at hospitals near their practice so they can assist emergency room doctors when a patient suffers an emergency. He also authored the majority opinion in a ruling against a similar Texas law in 2016. 

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