Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to people familiar with his thinking.
President Joe Biden and Breyer are scheduled to appear together at the White House Thursday as the Supreme Court justice is set to announce his retirement, a source familiar with the matter confirmed to NBC News.
Breyer is one of the three remaining liberal justices, and his decision to retire after more than 27 years on the court allows Biden to appoint a successor who could serve for decades and, in the short term, maintain the current 6-3 split between conservative and liberal justices.
At 83, Breyer is the court’s oldest member. Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate — a position that could change after the midterm elections in November. They contended that Justice Ruth Bader Ginsburg stayed too long despite her history of health problems and should have stepped down during the Obama administration.
Ginsburg’s death from cancer at 87 allowed then-President Donald Trump to appoint her successor, Amy Coney Barrett, moving the court further to the right. An appointment by Biden could keep Breyer’s seat on the liberal side of the court for years or decades to come.
Biden said in brief remarks to the press on Wednesday that he will leave it to Breyer to formally announce the retirement.
Let him make whatever statement he’s going to make and I’ll be happy to talk about it later,” he said.
White House press secretary Jen Psaki had earlier tweeted a statement, saying, “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.” The White House had no additional details or information to share, she added.
Erwin Chemerinsky, dean of the University of California Berkeley School of Law, urged Breyer to retire in a Washington Post op-ed article in May, writing that there are times “when the stewards 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 justice, is irreplaceable, and that the risks presented by remaining are more than hypothetical.”
Biden promised on the campaign trail to nominate a Black woman to the court. In the wake of Breyer’s announcement, there was an outpouring of statements calling for him to follow through. The progressive group Demand Justice hired a truck last year to drive around Washington with the sign: “Breyer Retire. It’s time for a Black woman Supreme Court justice.”
Among likely contenders are U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia, a former Breyer law clerk; and Leondra Kruger, a justice on California’s Supreme Court.
Jackson, formerly a district court judge in Washington, was nominated by Biden to the U.S. Circuit Court and was confirmed by the Senate in mid-June on a 53-44 vote, including three Republicans. She succeeded Merrick Garland, who left the appeals court to become Biden’s attorney general.
Sen. Patty Murray, D-Wash., was among those who issued a statement soon after the news of Breyer’s impending retirement, calling on Biden to uphold his pledge to nominate a Black woman as the next justice.
U.S. Supreme Court Justice Stephen Breyer is retiring after serving more than two decades on the nation’s highest court, Supreme Court and Biden administration sources tell NPR. Breyer is expected to make the announcement at the White House on Thursday.
Breyer — professorial, practical and moderately liberal — wrote many of the court’s legally important but less glamorous decisions and sought, behind the scenes, to build consensus for centrist decisions on a conservative court.
Breyer’s retirement gives President Biden his first opportunity to name a new justice to the court. During the 2020 campaign, he pledged to name a Black woman if he got the chance. The two leading contenders are said to be federal Judge Ketanji Brown Jackson, who was on President Barack Obama’s shortlist for the court in 2016, and California Supreme Court Justice Leondra Kruger, who served as assistant and then deputy solicitor general in both Democratic and Republican administrations prior to her nomination to California’s highest court.
Both women are young, in terms of Supreme Court appointment. Jackson is 51 and Kruger is 45. And both have stellar legal credentials.
Breyer’s decision to retire is a relief to liberal Democrats after seeing Republicans push through three nominees from President Donald Trump using some unprecedented tactics. Indeed, last year, some liberal groups publicly pressed Breyer to retire, even demonstrating in front of the Supreme Court. The justice, however demurred. In an interview with NPR, he said that the decision on when to retire “has many complex parts to it. I think I am aware of most of them and will consider them.”
His decision to remain for another year was likely due in large part to the major issues the court was about to confront — abortion, guns, separation of church and state, and potentially affirmative action. These are all matters that he has strong feelings about, and he thought that his 27 years on the court might enable him to prevent a wild swing to the right. In the 2020 term, he had played just that role.
But this term, when compromise seemed to elude even his skilled hand, the 83-year-old justice decided it was time to step down. As he put it in an NPR interview in September that he does “not want to stay on the Supreme Court until I die.”
The court’s term ends this summer, and it’s expected he’ll retire then.