Justice Stephen Breyer plans to withdraw from the Supreme Court, opening the way for Biden to choose another progressive justice
The liberal judge’s decision to retire after more than 27 years on the high court will allow the president to name a successor who could serve for several decades.
Justice Stephen Breyer will leave the Supreme Court at the end of the current term, according to people familiar with his intentions.
Breyer is one of three progressive justices (against a majority of six conservatives), and his decision to retire after more than 27 years on the court will allow President Joe Biden to name a successor who could serve for several decades.
At 83, Breyer is the oldest member of the court. Progressive activists have been urging him for months to step down now that Democrats control the White House and Senate and can name a replacement without risk of political deadlock.
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They argue that Justice Ruth Bader Ginsburg remained on the court despite her history of ill health, avoiding being replaced during the presidency of Democrat Barack Obama.
Ginsburg’s death from cancer at age 87 allowed former Republican President Donald Trump to name his successor, Amy Coney Barrett, bolstering the conservative majority on the court.
Professor Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, wrote in an op-ed in The Washington Post in May, urging Breyer to step down. He assured that there are times “when the administrators of our system must put the good of an institution they love, and of the country, they love, above their own interests. They have to recognize that no one, not even a brilliant judge, is irreplaceable and that the risks of staying are more than hypothetical.”
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For its part, the progressive group Demand Justice hired a truck last year to tour the neighborhood where the court is located with this sign: “Breyer is retiring. It’s time there was a black woman on the Supreme Court. “
Biden has committed himself precisely in that direction. Among the possible candidates is federal judge Ketanji Brown Jackson, a former legal assistant to Breyer; and Leondra Kruger, Justice of the California Supreme Court.
After serving as a district judge in Washington, Jackson was nominated by Biden for a seat on the Circuit Court of Appeals for the District of Columbia and was confirmed in mid-June by a 53-44 vote. He succeeded Merrick Garland, who left that court to become Biden’s attorney general.
Appointed by then-Democratic President Bill Clinton, Breyer came to the Supreme Court in 1994 and became one of its moderate or liberal members, though he often said it was misleading to label justices with those terms.
He believed that the interpretation of the Constitution should be based on practical considerations, changing with the times. This put him at odds with conservative justices who said the court should be guided by the original intent of the founders.
“The reason I do it is that the law in general, I think, comes out of communities of people who have some problems that they want to solve,” he said in an interview.
Breyer wrote the court opinion that struck down a state law banning some late-term abortions in 2000, and dissented seven years later when the Supreme Court upheld a similar federal law passed by Congress. He supported affirmative action and other civil rights. And in a widely publicized dissent in 2015, he said that the death penalty in the United States had become so arbitrary that it was probably unconstitutional.
Biden is expected to move quickly to nominate a successor who may be ready to serve when the Supreme Court’s new term begins on October 3.