Justice Breyer Retires from Supreme Court; Biden to Nominate First Black Woman Justice

Justice Stephen Breyer's retirement from the Supreme Court gives President Biden the chance to nominate the first Black woman to the nation's highest court. Source: "US Supreme Court" by zacklur is licensed under CC BY-NC-ND 2.0

Supreme Court Justice Stephen Breyer formally announced his retirement on January 27 after serving more than a quarter-century on the bench, giving President Joe Biden the opportunity to deliver on his historic campaign promise to nominate the first African American female justice to the nation’s highest court.

In a letter to Biden released by the Supreme Court, Breyer said he intends to vacate his seat when the Court departs for summer recess around the end of June, assuming that his successor will by then be confirmed. Breyer, 83, is the oldest justice on the bench and is one of three justices in the liberal wing of the Supreme Court. He has been praised for his ability to build consensus among the Court on issues from Obamacare to affirmative action in higher education, according to NPR.

At a White House event aside Breyer, Biden announced his intentions to fulfill his promise made on the 2020 campaign trail and select a nominee by the end of February. 

"Our process is going to be rigorous," the President said. "I've made no decision except one: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court. It's long overdue in my view."

Biden appears committed to his pledge to name a Black woman to the Court. The frontrunners on his shortlist are said to be Judge Ketanji Brown Jackson, who serves on the U.S. Court of Appeals for the D.C. Circut and was on former President Barack Obama’s 2016 shortlist, California Supreme Court Justice Leondra R. Kruger and Judge J. Michelle Childs, of the U.S. District Court for the District of South Carolina.

Breyer’s retirement announcement comes amid mounting pressure from liberals who wanted to ensure Biden would be able to nominate a younger liberal to take his seat while the left still holds narrow control of the Senate, especially before the 2022 midterms when the Democrats’ control of the chamber is at stake. By stepping down, Breyer has given the President the opportunity to reinforce the Court’s liberal wing with a younger justice who can be expected to serve for decades. Biden has indicated that Vice President Kamala Harris will be advising him on a potential replacement for Breyer, given her extensive law background.

Shortly after news of Breyer’s retirement leaked online, Senate Majority Leader Chuck Schumer (D-NY) vowed to give Biden’s nominee a prompt hearing in the Senate Judiciary Committee. Schumer is reportedly considering a confirmation timeline similar to that of former President Trump’s nominee, Amy Coney Barrett, last fall. It took 30 days from Trump’s announcement for Barrett to be confirmed to the Court, and a change to chamber rules made by Republicans to facilitate the confirmation of Trump nominee Neil Gorsuch in 2017 will allow Democrats to also confirm Biden’s nominee with just a simple majority.

"In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible," Schumer said in New York on January 26.

In his formal announcement remarks at the White House, Breyer maintained an optimistic voice in discussing American democracy as an experiment. 

“It's an experiment that's still going on. And I'll tell you something: you know who will see whether that experiment works? It's you, my friend,” he said. “It's us, but it's you. It's that next generation and the one after that. [...] They'll determine whether the experiment still works. And of course, I am an optimist, and I'm pretty sure it will.”