Supreme Court Justice Stephen Breyer is retiring at the end of the current term, sources familiar with his thinking tell NBC News.
At 83 years old, Breyer is the oldest member of the court and one of the three remaining liberal justices. His decision to retire after more than 27 years on the court allows President Joe Biden to appoint a successor who could serve for several decades and, in the short term, maintain the current 6-3 split between conservative and liberal justices.
Biden already has pledged to name the first Black woman to the court, if he gets the chance. Among the names being circulated are California Supreme Court Justice Leondra Kruger, U.S. District Court Judge Ketanji Brown Jackson and U.S. District Court Judge Michelle Childs. She is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before the state’s presidential primary last year.
White House press secretary Jen Psaki said on Twitter: “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. We have no additional details or information to share from @WhiteHouse.”
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Progressives have been urging Breyer to step down while Democrats control the Senate and the White House. Justice Ruth Bader Ginsburg had rebuffed suggestions she retire from the high court during Barack Obama's presidency and remained on the bench until her death in September 2020 at age 87. Then-President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, cementing a conservative majority on the court just over a month before he lost his bid for a second term.
But while the ideological makeup would stay the same, Breyer’s retirement allows Biden to rejuvenate the liberal side of the court, where Justice Sonia Sotomayor is 66 and Justice Elena Kagan is 60. It also makes conservative Justice Clarence Thomas the oldest member of the court at 73.
Breyer was appointed by President Bill Clinton in 1994 and has been a pragmatic force on the court. His departure is expected over the summer.
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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.”
Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.
Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee, said in a statement: “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."
Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights 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 twin 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 had the air of an absent-minded professor. In fact, 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, Breyer’s 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. Breyer 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 your 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’s 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.
