Supreme Court Justice Stephen Breyer Is Retiring

UPDATE 1/27: On Thursday, Justice Stephen Breyer confirmed his plan to step down from the Supreme Court in a letter to President Joe Biden.

“I intend this decision to take effect when the court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer wrote, in a hint that he may not leave if the Senate doesn’t select his heir in time. 

Supreme Court Justice Stephen Breyer has reportedly decided to retire, handing President Joe Biden a chance to replace the aging liberal justice with a younger judge who will maintain the current 6-3 conservative-majority split on the nation’s highest court.

Multiple outlets reported Wednesday that Breyer plans to step down. The impending nomination will set up a high-stakes fight in the evenly divided Senate.

The Supreme Court didn’t immediately reply to a VICE News request for comment.

Over the last several months, liberals have made it increasingly clear that they wanted Breyer, 83, to step down. Fears swirled that if Breyer were to die, become too sick to work, or retire at a time when the Democrats have lost control of the Senate, Republicans could block Biden from successfully appointing a new Supreme Court justice. 

Justice Ruth Bader Ginsburg, who died in 2020, didn’t step down during President Barack Obama’s tenure. Her death paved the way for the Republican-dominated Senate, just before the 2020 election, to confirm Justice Amy Coney Barrett, a conservative darling who will almost certainly help tint the Supreme Court red for generations.

In April 2021, Demand Justice, a progressive advocacy group that focuses on the courts, launched a “Breyer Retire” campaign, which included a billboard circling the Supreme Court on a truck bearing the message, “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.” In June, New York Democratic Rep. Alexandria Ocasio-Cortez told CNN that she would “probably lean toward yes” on the question of whether Breyer should step down at the end of this term.

Biden has vowed to nominate a Black woman to the Supreme Court, which would be a first for the country. The two top contenders for Breyer’s seat are federal Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger, NPR reported.

White House press secretary Jen Psaki said that the Biden administration has no further information to share.

“It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today,” Psaki tweeted.

But even with Breyer stepping down, Democrats’ ability to easily confirm his successor is far from guaranteed, and an opening on the nation’s highest court is sure to become a hot issue in the 2022 midterm elections. Democrats and Republicans each hold 50 Senate seats, and while a handful of senators in both parties have been willing to cross the line on Supreme Court votes in the past, the process has grown increasingly polarized in recent years. 

Democrats may need to hold together all 50 senators on this vote—including West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, who have generally supported Biden’s judicial nominees but have split with their party on some other high-profile issues in recent months.

Despite the recent push to see him step down, Breyer, who was nominated by President Bill Clinton in 1994, had given few, if any, signs that he would retire. In fact, a speech he gave in April 2021 seemed to indicate that he was inclined to keep working: The justice told attendees, “If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law itself can only diminish”—an apparent signal that Breyer didn’t want to be a bargaining chip between Democrats and Republicans.

Since that comment, however, the political miasma surrounding the Supreme Court has only thickened. The justices are now deliberating over a case that may overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide and that remains one of the court’s most controversial rulings. 

During arguments in that case last year, Justice Sonia Sotomayor appeared to be speaking to her fellow justices when she bemoaned the state of the court’s legitimacy. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked.

Cameron Joseph contributed reporting.

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