WASHINGTON (AP) — Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court.
Breyer, 83, has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.
Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.
Senate Majority Leader Chuck Schumer said Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”
Brent Leatherwood, acting president of the SBC’s Ethics & Religious Liberty Commission, said Christians should be praying now for Breyer’s replacement.
“For over two decades, Justice Breyer has been a fixture on the bench,” Leatherwood said in written comments for Baptist Press. “Anyone who has listened to oral arguments of the Court knows when Breyer is speaking – he’s often the most talkative justice and usually asking thought-provoking questions about the case. As many news outlets have noted, his votes consistently placed him on the liberal wing of the Court so President Biden will undoubtedly look for someone in that mold to fill his seat. What is needed, though, is a justice committed to extending constitutional protections to the preborn, protecting the family, upholding religious liberty, and affirming the dignity of each and every person. As unlikely as that is, we should pray that such an individual will be identified and nominated by the President.”
Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.
Breyer’s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in both cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses but allowed one to remain on the grounds of the state Capitol in Austin, Texas.
In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good-natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.
He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes has had the air of an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.
He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.
Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.
And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, his frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.
“It is not often that so few have so quickly changed so much,” Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.
His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter’s defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.
His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes.
Breyer’s opinions were notable because they never contained footnotes. He was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.
“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that you’re right; there is no such proof.”
Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a stellar academic career at Stanford, graduating with highest honors. He attended Oxford, where he received first-class honors in philosophy, politics and economics.
Breyer then attended Harvard Law School, where he worked on the Law Review and graduated with highest honors.
Breyer’s first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department’s antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.
Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children — daughters Chloe and Nell and a son, Michael — and six grandchildren.
From The Associated Press. May not be republished. AP writer Colleen Long contributed to this report. Sherman reported from Bradenton Beach, Fla.