US Supreme Court justice Stephen Breyer's retirement to set up Senate confirmation clash

Justice Stephen Breyer is the court’s oldest justice at 83. PHOTO: NYTIMES

WASHINGTON (BLOOMBERG) - US Supreme Court Justice Stephen 
Breyer is planning to retire, giving President Joe Biden a chance to fill the vacancy with the court’s first Black woman and setting up a confirmation showdown in the Senate.  

The next justice would reinforce the court’s outnumbered liberal wing and potentially serve for decades but won’t shift the ideological balance. 

Mr Breyer, the court’s oldest justice at 83, is a pragmatist who typically sides with the liberal wing in divisive cases.  

Biden declined to confirm the retirement at the opening of a session with business leaders at the White House on Wednesday.

A person familiar with the justice’s thinking said Mr Breyer was retiring.

Mr Biden has promised to nominate the first Black woman to the court. Leading candidates include California Supreme Court Justice Leondra Kruger and Judge Ketanji Brown Jackson, who recently won Senate confirmation 53-44 after Mr Biden nominated her to the powerful federal appeals court in Washington.  

"The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court, and certainly stands by that," White House Press Secretary Jen Psaki said Wednesday (Jan 26). 

Mr Biden said there has been no announcement from Mr Breyer.

"Every justice has the right and opportunity to decide what he or she is going to do and announce it on their own," Mr Biden said. "Let him make whatever statement he’s going to make. And I’ll be happy to talk about it later."

Supreme Court spokeswoman Patricia McCabe did not respond to requests for comment.

The news comes midway in a Supreme Court term that could see the conservative-majority court overturn the landmark Roe v. Wade abortion-rights ruling, establish a constitutional right to carry a handgun in public and slash the power of the Environmental Protection Agency to take steps against climate change. 

Liberal activists had been calling on Mr Breyer to retire while Democrats controlled the White House and Senate.

The unusual public push came after a Republican-controlled Senate confirmed three Donald Trump appointees, including one to fill a seat the GOP held open for the last year of Barack Obama's presidency and another for a vacancy that arose 46 days before Election Day 2020 when liberal Justice Ruth Bader Ginsburg died.

Democrats, who control the Senate because of Vice-President Kamala Harris’ tie-breaking vote, can confirm Mr Biden’s nominee with a simple majority.

While moderate Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have held up Mr Biden’s economic agenda and thwarted Democrats’ drive to overhaul voting rights, they’ve been supportive of Mr Biden’s judicial picks.  

Senate Minority Leader Mitch McConnell led a 2016 Republican blockade of Mr Obama nominee Merrick Garland, but isn’t likely to be able to do that again.

He said last year said he would be "highly unlikely" to let Mr Biden fill a Supreme Court vacancy in 2024 should the GOP control the Senate at that point. He also refused to say what he would do with a 2023 vacancy. 

Mr Breyer could make his retirement effective at the end of the court’s current term, which is scheduled to run through late June.

Justices typically retire at the end of a term to ensure they can vote in cases that have already been argued.   

Senator Dianne Feinstein, a Democrat from California, indicated she expected Mr Breyer to say on through the end of the term, saying the Senate had "six months until Justice Breyer departs the court."

But with Democrats currently in control – and with Republicans having abolished the filibuster for Supreme Court nominations in 2017 – Mr McConnell’s options for the Breyer seat are likely to be limited. 

Three GOP senators supported Ms Jackson when she was confirmed by the Senate last year on a 53-44 vote: Ms Susan Collins of Maine, Ms Lisa Murkowski of Alaska and Mr Lindsey Graham of South Carolina.

But in a statement Wednesday, Mr Graham indicated his support wasn’t guaranteed for a Supreme Court nomination.  

"If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support," Mr Graham said. "Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court."

Senate Majority Leader Chuck Schumer of New York said the chamber would consider Mr Biden’s nomination "with all deliberate speed." 

Mr Breyer "is, and always has been, a model jurist," Mr Schumer said. "He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint."

Senator Dick Durbin of Illinois, the No. 2 Democrat, said Mr Biden "has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice."

Republican Senator Josh Hawley of Missouri called the vacancy a "moment of truth" for Mr Biden.

"Will this deeply unpopular & divisive president finally reject the radical elements of his party and nominate someone who loves America and believes in the Constitution?" he tweeted. 

As a justice, Mr Breyer voted to strengthen abortion rights, legalise gay marriage and uphold race-based college admissions. In a 2015 opinion, he said the death penalty is probably unconstitutional because it cannot be applied swiftly enough to serve as a deterrent without risking the execution of innocent people.

"We can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application," Breyer wrote. "We cannot have both."

He crafted the two biggest two abortion-rights rulings of his tenure: a 2000 decision that struck down Nebraska's ban on a procedure opponents called "partial-birth" abortion; a 2016 ruling that would have closed three-quarters of the state's clinics by imposing new rules on clinics and doctors. The court's conservative wing later chipped away at both of those rulings.

With the high court's intervention in the case, "we do risk a self-inflicted wound - a wound that may harm not just the court, but the nation," Breyer wrote. He had earlier tried to broker a compromise that would have let the recounts resume.

Known for asking rambling questions during arguments, Breyer often suggested that he was struggling to find the right answer to a legal problem. He would lay out his tentative views of a case before telling a lawyer, "I'd like your response." His questions and opinions alike tended to focus on the real-world consequences of a case.

Though he eventually came to doubt the death penalty's constitutionality, Breyer often deferred to the needs of police or prosecutors. He joined a 2003 ruling that allowed forcible medication of some mentally ill criminal suspects to make them competent to stand trial. He voted with the majority in 2004 to let police set up traffic roadblocks to question motorists about a recent crime.

He joined a series of decisions that bolstered the rights of detainees at Guantanamo Bay in Cuba and carved out a central role for the judiciary during wartime. The last of those rulings, in 2006, barred the military tribunals the Bush administration had hoped to use to try accused terrorists.

On some issues, such as the role of religion in public life, Breyer took the middle ground. He voted in 2005 to bar displays of the Ten Commandments in two Kentucky courthouses while allowing similar depiction on the grounds of the Texas State Capitol. In 2019, he backed a century-old 40-foot cross in a Maryland intersection, while saying a newer monument would not necessarily be constitutional.

"The Establishment Clause concern for protecting the nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher programme," he wrote.

A 2021 photo shows (back row, from left) US Supreme Court justices Brett Kavanaugh, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, (fromt row, from left) Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer and Sonia Sotomayor. PHOTO: REUTERS

In 2002, he said in a dissenting opinion that Ohio violated the constitution ban on government establishment of religion by letting parents use tax-funded vouchers to send children to religious schools. Breyer said it did not matter that parents could instead choose secular schools.

As a justice, he wrote a series of books laying out his theory of the Constitution and the Supreme Court's proper role. He argued against a rigid adherence to the words of the Constitution and federal statutes, saying judges should also consider the broader purpose of a law and the potential consequences of the court's interpretation.

"American judges, when they interpret the law, are prudent and pragmatic," Breyer said in a 2010 interview. "They look for purposes. And they're careful."

Breyer dissented in 2000 when a 5-4 court decision stopped the Florida ballot recounts and sealed George W. Bush's election as president over Democrat Al Gore.

Breyer's retirement was earlier reported by NBC News.

Join ST's Telegram channel and get the latest breaking news delivered to you.