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Stephen Breyer Will Reportedly Retire at End of Supreme Court Term; 83-Year-Old Justice Has Served Since 1994

Stephen Breyer

Associate Justice Stephen Breyer.

Associate U.S. Supreme Court Justice Stephen Breyer, 83, will retire, according to sources who spoke with CNN, NBC News, and NPR.

CNN said Breyer would remain on the nation’s highest court until the end of its current term and — if necessary — until “a replacement is confirmed.”  NBC’s Pete Williams, however, reported that Breyer would retire at the end of the court’s current term — not immediately and not when a successor is nominated.

A formal announcement to the White House may come as early as Thursday, CNN’s Wolf Blitzer later added.

The court’s 2021 term began on Oct. 4, 2021 and wraps up on Oct. 2, 2022.

The justice’s reported departure-to-come grants President Joe Biden months to nominate a justice of his choosing after Republicans aggressively filled judicial vacancies under the presidency of Donald Trump and blocked former President Barack Obama’s nominee Merrick Garland, who is now the attorney general of the United States.  The retirement date — presuming it coincides with the conclusion of the term — also will occur more than two months before the critical Nov. 8, 2022 midterm elections.

Breyer’s reported decision to remain on the court through the conclusion of this term also gives the legally liberal justice the chance to express his legal views about hot-button social issues currently before the court, including the future of abortion access.  However, his reported decision to step down from the bench also came quite early in the year when compared to similar announcements from other justices.

White House Press Secretary Jen Psaki almost immediately noted that few details had yet been provided to the Executive Branch.

“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,” she tweeted. “We have no additional details or information to share from” the White House.

Biden once pledged during a political debate to nominate a Black woman to the Supreme Court.

“I commit that if I’m elected President and have an opportunity to appoint someone to the Courts, I’ll appoint the first black woman to the Courts,” Biden said in March 2020. “It’s required that they have representation now. It’s long overdue.”

That campaign promise was criticized by law professor Jonathan Turley, who was the lone GOP impeachment witness during Trump’s first impeachment trial.

The Biden administration has also said that it would strongly consider candidates for the judiciary who were public defenders, civil rights attorneys, or who worked with indigent clients — backgrounds traditionally not represented in the federal judiciary — CNN noted.

Breyer has attempted to dismiss suggestions by liberals, progressives, and Democrats that he schedule his departure to coincide with the current Democratic Party majorities in both houses of congress.  The Democrats control the House 222 to 212, with Rep. Devin Nunes’s former seat currently vacant.  They also effectively but not definitively control the Senate.  Though Republicans hold a numerical majority at 50 seats in the upper chamber, the Democrats hold 48 seats; the Senate’s two independents caucus with and frequently vote with the Democrats; and Vice President Kamala Harris issues a tie-breaking vote should any 50-50 split occur.  Justice Brett Kavanaugh was confirmed by a 50-48 vote, one of the narrowest in U.S. history.

Clarence Thomas, who is ten years younger than Breyer, is poised to become the high court’s oldest member.  Thomas is 73.

Assuming Biden appoints a legally liberal justice to fill Breyer’s seat, the court’s current 6-3 conservative supermajority would remain intact.

Sen. Dick Durbin (D-Ill.), the chair of the Senate Judiciary Committee, implored Biden to do just that.

“I thank Justice Breyer for his decades serving the Court and the nation,” Durbin said in a statement. “He has been a trusted voice on the bench with a first-rate legal mind.”

“With this Supreme Court vacancy, President Biden has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice,” Durbin continued. “I look forward to moving the President’s nominee expeditiously through the Committee.”

The only living retired Supreme Court justices are Anthony Kennedy, David Souter, and Sandra Day O’Connor. Souter, despite retiring from the high court in June 2009, has occasionally filled in on the U.S. Court of Appeals for the First Circuit in Boston — including on cases which occurred more than ten years after his retirement.

This report has been updated as a developing story.

[Win McNamee/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.